The matters all start out the same - there has been an infringement of copyright. While numerous issues are immediately identified and debated, issues related to important dates and deadlines must not be overlooked. Copyright owners and attorneys alike should be asking several questions:
1. Has there been a federal registration for the particular work that is the subject of copyright infringement matter?
2. If so, when was the copyright registered?
3. When was the copyrighted work first published?
4. If the copyright is based upon common law, will a registration be useful now?
5. Has the copyright owner forfeited any rights in light of certain important dates?
These questions become critical in any copyright infringement matter. Copyright rights persist for a period of the life of the author plus 70 years. This duration cannot be renewed. Once this time is up, the work that was once covered by a copyright registration is now part of the public domain. Therefore, an infringement of copyright may not have actually occurred.
On the other hand, an existing copyright registration is important for several reasons when there is unauthorized use. Registration before or within five years of publication of the particular work entitles its owner to a presumption that the copyright is valid in an infringement lawsuit. Moreover, registration within three months after publication or before infringement results will also entitle the copyright owner to statutory damages and attorneys' fees. The benefit of a presumption of validity, coupled with the leverage or ability to actually recover statutory damages and attorneys' fees, are extremely important in any copyright infringement lawsuit. Therefore, the copyright owner would undoubtedly want to take advantage of these benefits and not forfeit its ability to do so because of a failure to understand these important time frames.
Ultimately, identifying these time frame related issues, along with the critical answers to them, will allow a copyright owner to act accordingly. Similarly, the alleged infringer would want to fully understand both the limits and risks associated with the work that is the subject of the copyright infringement. While each case is unique with specific facts and issues, these principles are applicable to all.
Brian A. Hall is an attorney and partner of Traverse Legal, PLC, a law firm practicing complex litigation, intellectual property matters, internet law, and copyright infringement matters. Speak with a copyright attorney today and learn more about the importance of registering, monitoring, and protecting your copyrighted works.