On the most fundamental level, a Copyright is a legal right which protects ones creative and original work from impermissible appropriation. Copyrights specifically protect original works of authorship including artistic, musical, literary, and dramatic works. The very second a creative work is “fixed in tangible form”, it is said to have obtained a “Copyright.” Critically, while the copyright holder may technically “have a copyright” at the time of the production of the work, that right is only enforceable if/when the copyright is registered with the Copyright Office. Thus, for any work sufficiently valuable, copyright registration is entirely worthwhile.
Do you think that someone might be infringing on your copyright? First things first; speak to an IP Attorney and send a Copyright Infringement Cease and Desist letter.
WHAT KINDS OF WORKS ARE COVERED UNDER COPYRIGHT LAW?
Copyright law covers “original works of authorship” and only applies to those works which are at least, to a sufficient, extent “creative”. The idea here is that the Copyright Office wants to protect artists who are worthy of protection while not limiting the creative freedoms of future artists unnecessarily. Specific works covered under Copyright Law include:
- Pictorial, graphic and sculptural works
- Literary Works
- Dramatic Works
- Motion Pictures
- Sound Recordings
- Architectural Works
Copyright law is flexible in that more nuanced artistic works can potentially fall under one of these broader categories as long as the work meets the more fundamental criteria of being novel and sufficiently creative.
COPYING DOES NOT NECESSARILY TRIGGER COPYRIGHT INFRINGEMENT: FAIR USE EXEMPTIONS
Imagine for the moment that a news article were to copy an entire paragraph of text from another reputable source in order to deliver a certain news story. Is this copyright infringement? Well, under a classical understanding of Copyright law, Yes. An original author wrote the copied paragraph of text and a newspaper has seemingly copied it in its entirety. How could this not be “Copyright Infringement”. Well, under Section 107 of the Copyright Act, there are certain circumstances under-which a person/entity is permitted to “copy” the work of others. These instances are known as, Fair Use, exemptions.
According to Section 107, “Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”
There are four factors to consider in determining if your actions fall into the fair use category:
- Purpose and character of use: A fair use exemption is more likely to be supported for if copyrighted material is used for non-profit or education purposes, rather than commercial or business purposes. The idea here is that we can tolerate the use of another’s work if it is for objectively altruistic purposes but not if it is a naked attempt to turn a profit off of another’s hard work.
- Nature of the copyrighted work: Reports, factual documents, and more technical works may support a claim of fair use. Highly creative works such as music, novels, and films don’t typically fall into the fair use category.
- Portion of the copyrighted work used: Posting a screen shot of a movie scene on a blog may constitute fair use, whereas making the entire movie available for free would be infringement. This makes sense – there is likely a legitimate reason to highlight a specific portion of a work but taking the entire work seems by definition unnecessary
- Effect of the use upon the market: If the unauthorized use of the trademark negatively impacts the trademark holder’s profits, then a claim of fair use will not hold up. Remember, Fair Use exemptions are not designed to allow the would-be-infringer to damage the original creator.
Before either claiming Fair Use as a defense or evaluating your rights as the Copyright holder in light of the Fair Use doctrine, please be aware of its limitations. Simply claiming “Fair Use” is not a valid defense and one’s purpose in using the creative work of another must legitimately fall under the provisions of the Fair Use doctrine.
WHY SEND A COPYRIGHT INFRINGEMENT CEASE AND DESIST LETTER?
Principally, the purpose in drafting and sending one of these letters is to let your opposition know that you are aware of the IP Infringement, that you would like the copyright infringement to cease, and that you are prepared to enforce your Copyright. Copyright Cease and Desist letters more often than not can lead to a quick and painless resolution of the matter if handled properly.
An effective copyright infringement letter contains several parts:
- It identifies who the copyright holder is.
- It details who the infringing party is.
- It identifies the copyrighted work by title, Copyright Registration Number, and/or a copy of the Copyrighted work, if applicable.
- It explains how the copyright was infringed upon along with an addendum containing specific evidence illustrating the infringement.
- It lists your demands, which may include:
- Written acknowledgement that the infringing party has received the letter.
- Removal of your Copyrighted work from the offending piece
- A licensing fee to pay for previous unauthorized use of the copyright.
- A monetary settlement to release the infringing party from liability.
- Proof that the infringing party has complied with your demands by a specific date.
The court system in the United States loves documentation and evidence; this cease-and-desist letter will serve as one such piece of evidence that you have notified the infringing party of their copyright infringement and strips them of any legitimate claim to ignorance of their use of your copyrighted work.
I’VE RECEIVED A COPYRIGHT CEASE AND DESIST LETTER – NOW WHAT?
In the event that you are on the receiving end of a Copyright Cease and Desist Letter, contact an IP attorney to discuss your options. Remember, the first objective of any Cease and Desist Letter is to frighten the recipient of the letter, the principle message being, “Do what I say or I will sue you”. Thus, Copyright Cease and Desist Letters are very often a big bark with no bite.
It is important at this stage to be honest with yourself (and your attorney!); how strong of a Copyright claim is being made in the letter? Did you really copy their work? All of it? Part of it? Did you know that you were copying their work before you copied it? Have you made money from the infringing work? How much money? Over how long of a period of time? Depending on your answers to these questions, your strategy in responding to the Copyright Cease and Desist Letter will vary. It may be that you should comply with all of the demands, some of the demands, and/or none of the demands. Similarly, it may be prudent, depending on the strengths of the claims to respond to the letter or ignore it entirely. For example, if it turns out that the infringing work had a registered copyright with the Copyright Office, the claimant’s options are much stronger and they will in theory be able to collect statutory damages and even legal fees if he/she prevails. These are strategic issues which must be grounded in a firm understanding of Copyright law.
Ultimately, all of these questions can be boiled down to a single question;“Will it cost me more or less money to defend or capitulate to the letter’s demands?” This is not necessarily an easy question to answer and will involve the associated risks of attempting to forecast the likelihood of the plaintiff’s success in Court. Of course, even if one were to know for certain that their opposition will prevail in court, it is not obvious how much money he/she will actually end up winning and therefore agreeing to a more modest settlement in advance may simply make greater financial sense.
NEED HELP WITH A COPYRIGHT CEASE AND DESIST LETTER?: SPEAK TO AN IP ATTORNEY
If you need to send a copyright cease and desist letter, or you’ve received one, please reach out to us. Our IP attorneys would love to chat and discuss your case.