Someone Stole My Copyrighted Work: Can I Sue for Infringement?

Will copyright litigation resolve your dispute?

By , Attorney

Imagine that you are a cartoonist with a popular website. You post your cartoons and illustrations on your site, and also sell them online printed onto T-shirts. One day, you walk by a poster store and are stunned to see your cartoon hanging in the window behind a frame. You never made your cartoon into a poster, much less sold it to this store. Someone must have downloaded the image from your site and printed it. Surely, this leaves you feeling angry, and also foolish for not selling your own posters. Should you sue the store for stealing and reselling your image?

Understanding Copyright Protection

Copyright law protects the rights of authors, poets, painters, and video makers, among others, with regard to their original works. To qualify for copyright protection, a work must be "fixed in a tangible medium of expression." This means that the work must exist in some physical form for at least some period of time, no matter how brief. Virtually any form of expression will qualify as a tangible medium.

In addition, the work must be originalthat is, independently created by the author. It doesn't matter if an author's creation is similar to existing works, or even if it is arguably lacking in quality, ingenuity, or aesthetic merit. So long as the author toils without copying from someone else, the results are protected by copyright.

Finally, to receive copyright protection, a work must be the result of at least some creative effort on the part of its author. There is no hard and fast rule as to how much creativity is enough. As one example, a work must be more creative than a telephone book's white pages, which involve a straightforward alphabetical listing of telephone numbers rather than a creative selection of listings.

Assuming those conditions are met, you can register your copyright with the U.S. Copyright Office. This creates the presumption of ownership, and allows you to sue infringers in federal court. Copyright law gives authors certain exclusive rights to their work. These rights include the exclusive right to reproduce or resell the work.

In the example above, a cartoonist with a website would certainly qualify for copyright protection. The cartoons are original as well as at least minimally creative.

Copyright Litigation to Fight Infringers

Now that you know the rights granted by the Copyright Act, the next question is what happens if you see someone infringing on those rights. The Copyright Act allows copyright owners to sue content infringers. In some cases, you can recover significant sums of money.

Note that you must first file your copyright registration before you can sue, though you can do this either before or after the infringement occurs. However, as a practical matter, lawsuits tend to have far more power if the registration occurred before the infringement. This is for primarily two reasons: First, the registration gives you the presumption of ownership, and second, it entitles a victorious plaintiff to statutory copyright damages. With those two factors on your side, copyright defendants are more likely to settle.

How does litigation work in practice? The first step is to speak with a copyright lawyer, who can advise you on the specifics of the procedure. You will need to collect evidence of the infringement, such as images of the "stolen" work being sold in stores, or printouts of the pages where it appears online. From there, your attorney will compile a document known as a complaint, which makes all of your formal legal allegations against the defendant.

Lawsuits over copyright infringement are not necessarily easy to win. The defendant may try to assert that you do not own the copyright, or that the work is in the public domain. Alternatively, the defendant may argue that even if you do have a copyright, his or her use of the work constitutes fair use, a common defense to infringement. This could mean a protracted court battle over these factual and legal questions. Moreover, even if you do prevail, there is no guaranty that the defendant will have the capital to pay a money judgment. In other words, there is a chance you might be throwing good money after bad unless you are confident that the defendant has assets.

Alternatives to Filing Suit Over Copyright Infringement

Copyright infringement litigation is hardly a perfect solution for every situation. Litigation can be time-consuming, expensive, and stressful. You will need to hire a copyright attorney, who will likely charge hundreds of dollars per hour. You will also need to pay for the lawyer's time spent on depositions, collecting documents, and appearing in court. It's a difficult process, particularly for those who own small businesses or work for themselves.

While the copyright infringement might be emotionally painful, you should also consider the monetary losses that you are suffering from it. In the poster example above, how much money is really being lost from the illustrator's T-shirt business if some poster store copies and sells her cartoon? The market for T-shirts and posters are somewhat different, and the profit from each poster sold at the store is probably relatively minimal. This analysis of course depends on volume and the sensitivity of your business to lost sales. But always keep the practical aspect of infringement in mind before spending thousands of dollars on legal fees; how much is the infringing activity really costing you?

There might be other ways to handle the infringement. Consider speaking directly with the infringers to see whether you can reason with them. Explain your position in a measured but firm tone. If that does not work, consider writing a demand letter, or retaining a lawyer for the limited purpose of writing such a letter (which might be taken more seriously if it comes from a lawyer).

In short, copyright litigation should never be your first move when someone infringes your work. But you can always keep it as a tool in your toolbox.

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