Copyright Attorneys in New York, NY

As copyright attorneys, we can assist you in copyright registration, copyright infringement, copyright licenssing, copyright litigation, and negotiation of copyright and license agreements.

Basics of Copyright

A copyright is a form of intellectual property right, designed to protect the creator of an original work in the literary and artistic domain from the unauthorized use of such work by third parties. These works include works in literary, artistic, musical, dramatic, audiovisual, architectural, and computer software.

Copyright includes the right to reproduce, distribute, perform, display and create derivative works from the original work. It is subject to limitations and exceptions, such as fair use.

Multiple Creators of a Copyrighted Work

When there are several creators of a copyrighted work, the rights of each person depend on the agreement. If there is no agreement, each copyright owner can exploit the work with the proceeds being split equally.

In larger works such as films and music compilations, unless there is an agreement regarding the ownership of the copyright, the presumption is that the copyright owner only retains rights over his own original work or contribution, if such contribution can be separated. An example of contribution that can be separated is the copyright owner of the music from the audiovisual in a film. Otherwise, in cases of copyrighted work that cannot be separated, the default rule applies that, unless there is an agreement to the contrary, the copyright holders can jointly exploit the work.

Copyright Registration

Although copyright exists from the moment of creation, registering a copyright grants the copyright owner several benefits.

First, it creates a public record of copyright ownership. Thus, for purposes of copyright infringement, the copyright owner is able to show prima facie evidence of ownership in court, and on its flip side, the infringer cannot claim ignorance of the fact that the work was subject of copyright.

Second, the copyright owner may sue for statutory damages and attorney’s fees in cases of litigation of copyright infringement. Statutory damages allow the copyright owner an amount of damages, despite absence of proof of actual damages suffered.

Third, registration assists in establishing priority date, in case there are competing claims of ownership. An earlier registered work carries a presumption of copyright as against the same later registered work.

Fourth, registration allows the copyright owner to request assistance with the US Customs and Border Protection to ensure infringing works are not imported.

Lastly, registration allows copyright protection and enforcement in other countries where international agreements and treaties are in place

Copyright Application

In order to register a copyright, one has to submit a copyright application with the US Copyright Office. Having an experienced copyright attorney submit your documents can save you time because it can ensure that your documents are complete upon submission.

When your copyright application is sufficient upon initial submission, you can expect processing times between three to six months. If the Copyright Office finds that the application is deficient and requires the submission of additional documents, processing times can reach nine to twenty months.

Retroactive Copyright Registration

If the copyright owner was not able to register the original work and then subsequently finds a person infringing the unregistered work, the copyright owner may file an application for copyright. A copyright infringement lawsuit can then be filed, even while the copyright application is pending decision from the US Copyright Office. However, the court may stay the proceedings until the Copyright Office decides on the application.

Copyright Infringement

To prove copyright infringement, the copyright owner must prove:

1.     valid copyright ownership; and

2.     the defendant’s copying of elements of the original copyrighted work.

Under valid copyright ownership, it must be shown that:

-       The work is an original and subject to legal protection. A work is original if it is of independent creation with a modicum of creativity.

-       There is notice of the copyright. Registering the work with the Copyright Office creates a rebuttable presumption regarding validity and ownership. However, even if the work is not registered, a common law copyright may exist for unpublished works. However, once the work is published, the work must be registered before filing a copyright infringement lawsuit.

To prove the second element, there are two ways, depending on whether the copyrighted work and the defendant’s work have substantial or striking similarity.

Substantial Similarity

There is substantial similarity when an ordinary person would recognize the similarity between the two works. It is a lower standard than striking similarity. Here, aside from showing substantial similarity, the copyright owner must show that the defendant saw or had access to the copyrighted work before creating his work.

Striking Similarity

Striking similarity occurs when there is an apparent and significant similarity between the two works without using detailed analysis. When there is striking similarity, there is no need to prove that the defendant saw or had access to the copyrighted work to prove infringement.

Cease and Desist Letter

Usually, when there is copyright infringement, a cease and desist letter to the copyright infringer can easily resolve the issue. Your copyright attorney can draft a cease and desist letter, formally demanding from the infringer to stop the infringing activities.

This letter must include the copyright owner or the copyright attorney’s contact information, a clear description of the copyrighted work, specific details about the alleged infringement, a demand to stop the infringing activities, a deadline to copy, and a statement that legal action will be undertaken if infringement continues.

This cease and desist letter should be sent through certified mail or any courier service with tracking in order to obtain proof of delivery.

Copyright Litigation

If the defendant continues the infringing activities despite the receipt of a cease and desist letter, the copyright owner has the right to file a copyright infringement suit.

The copyright infringement suit is filed in the federal court of the district where: (a) the defendant resides; or (b) the defendant has committed acts of infringement and has a regular and established place of business.

The copyright attorney prepares and files the complaint which must allege that the plaintiff is the owner of a valid copyright and the facts constituting the defendant’s infringement. The defendant is given the opportunity to respond to the complaint by filing an answer, which may raise defenses or counterclaims. Parties then engage in the discovery process to obtain information, documents, and other additional evidence. This discovery process allows the parties to build their case.

During the proceedings, motions may be filed by either party, such as a motion to dismiss, motion for preliminary injunction, or a motion for summary judgment. The court can also schedule a pre-trial conference to discuss the case, address the issues, and explore the possibility of settlement.

If the parties do not settle, trial proceeds where both parties present their evidence and witnesses before the court. The court then issues a judgment on whether there was infringement or not, and if there was infringement, the amount of damages. The losing party may appeal if they believe that there were errors in the application of the law.

Defenses to Copyright Infringement

When faced with a copyright infringement case, a defendant has several defenses that he can raise, depending on the unique circumstances of his case:

Fair Use

Fair use is the most significant defense in a copyright infringement claim. It allows a third party the right to use copyrighted work without consent from the owner for the purposes of a free exchange of ideas, criticism, commentary, news reporting, teaching, scholarship, and research. In determining whether fair use exists, the following factors are considered: purpose and character of the use, nature of the copyrighted work, amount and substantiality of the portion used, and effect on the market for the original work.  

Copyright Invalidity

If the copyright owner’s work is not original and creative or there is a defect in the copyright application, there can be no copyrighted work that is protectable.

Independent Creation

The defendant can also show that his work was an independent product, not copied from the plaintiff’s copyrighted work. This applies when there is only substantial similarity between the two works and the defendant had no access or did not see plaintiff’s copyrighted work.

Innocent Infringement

If the infringement was accidental and not intentional, liability may be mitigated and reduced.

Licensed or Permitted Use

The defendant can show that he was licensed and authorized to the use the copyrighted work as a defense to a copyright infringement claim.

Public Domain

When the copyright protection has expired, the copyrighted work enters the public domain, which it means it can be used by the public for personal or commercial purposes. For copyrighted works after 1978, the copyright term is the life of the author plus 70 years.

If there are multiple authors, copyright protection expires after 95 years from date of publication or 120 years from date of creation, whichever is shorter.

Examples of works in the public domain are works of William Shakespeare, Beethoven and Da Vinci. It also includes classic books such as Alice in Wonderland and Moby Dick.

Impossibility of Copying

When the defendant created his work prior to the copyright owner’s work, there is impossibility of the defendant copying the copyrighted work.

Negotiating Agreements

Copyright owners generally have to enter into agreements with third parties in order to sell or distribute the copyrighted work.

The copyright attorney has several items to consider when negotiating such agreement.

The license or scope of the agreement should be addressed. Because copyrighted work includes the right to reproduce, distribute, perform, display and create derivative works from the original work, these rights should be stated in the agreement, whether granted or restricted, exclusive or non-exclusive. Permitted uses should be adequately defined, including the duration, territory and financial terms. Financial terms can be either one-time payments, ongoing royalties, or a combination.

Publishing agreements for books generally have different terms than a record deal or a film distribution deal. When negotiating a deal, consulting and being represented by a copyright attorney is recommended.

The field of copyright law is broad and complex. Having a copyright attorney to guide you through this process, whether in copyright application, infringement, litigation, or negotiation is essential to ensure that your rights are protected and preserved. Should you need legal representation, we, at the law offices of Albert Goodwin, are here for you. We are located in New York, NY. You can call us at 212-233-1233 or send us an email at [email protected].