Copyright Litigation & Remedies

Copyright Litigation

Copyright litigation is initiated by filing suit in federal district court against an infringer.  Most courts require that the copyright be registered, although some allow suit to be filed if an application for registration is pending.  The copyright owner must establish that the copyrighted work has, in fact, been copied.  Because proof of actual copying is frequently not available, copying may be shown where the accused infringer had (1) access to the copyrighted work, and (2) there are substantial similarities between the copyrighted work and the accused work.  In considering substantial similarity, the court will focus on the artistic expressions in the work and not utilitarian or functional features, if any, in the accused work.  Courts may apply the abstraction, filtration, comparison test in an effort to separate the artistic components of the work from the utilitarian aspects.  The case may be tried to a jury, and any appeal is to the regional circuit court of appeals.

Copyright Remedies

Remedies for copyright infringement include (1) a preliminary injunction, (2) damages, (3) a permanent injunction, and (4) frequently attorney fees.  The damages may be either actual damages or statutory damages, provided that the work was registered before the infringement commenced.  Statutory damages for non-willful infringement are between $750 and $30,000 per work. The amount may be as low as $200 where the infringer can establish that it was not aware of and had no reason to believe it was infringing.  Statutory damages on account of willful infringement may be $150,000.  Significantly, the prevailing party, which may include a defendant, may also be entitled to recovery of its attorney fees incurred in pursuing the litigation.

< back