Infringement Actions
As in trademark actions, copyright owners typically send a cease and desist letter to the accused copyright infringer before initiating litigation for infringement. The cease and desist letter shown in Figure 6-1 can be modified easily for copyright violations. If the letter fails to bring about a resolution, the plaintiff can bring action in federal court if the copyright has been registered. If the Copyright Office refused registration, an action for infringement can still be brought if the plaintiff notifies the Copyright Office so it can participate in the action regarding the issue of registrability of the copyright. Only U.S. works are subject to the requirement of registration; works originating in most other nations need not be registered before action for infringement can be brought.
Once the plaintiff files the lawsuit, the defendant answers the complaint and asserts various defenses. Discovery commences and depositions are taken, documents are produced, and interrogatories (sets of written questions) are sent to each party for response. If the parties do not settle the dispute themselves, the case proceeds to trial. Plaintiffs are entitled to a jury trial, if desired. Courts can award the following remedies:
Injunctive relief. Courts can order that the defendant cease use, distribution, reproduction, performance, or display of the copyrighted matter. Courts issue restraining orders only if the plaintiffs show that they are likely to prevail at trial and that money damages are insufficient to protect them.
Impoundment. Courts can order the impounding of the infringing goods while an action is pending. After the action is concluded, a court may order the destruction or other disposition of infringing materials.
Damages and profits. An infringer is liable for the actual damages suffered by a copyright owner and any profits of the infringer that are attributable to the infringement. Instead of actual damages and profits, copyright owners can elect to recover statutory damages, namely, damages not less than $500 and not more than $20,000 for each infringement, as a court considers just. If the infringement was willful, the court can increase the award to $100,000. Generally, plaintiffs elect statutory damages when it may be difficult to prove actual damages. In one recent case, a court determined that a plaintiff should receive more than $70,000 for each act of infringement of a defendant who had violated the plaintiff's copyright in 440 separate unauthorized airings of a television program. The damage award, nearly $32 million, is believed to be the highest ever awarded for copyright infringement. Statutory damages are available only if the work was registered within three months after publication, thus providing a powerful incentive for prompt registration of copyrights.
Attorney's fees and costs. Courts, in their discretion, may award attorney's fees and costs to the prevailing party. Typically, costs and attorney's fees are awarded only in cases of willful misconduct or infringement, or if a contract provides for them.
Criminal sanctions. Copyright violators can be subject to fines and even imprisonment in cases of serious infringement. The statute of limitations for criminal proceedings is five years.
Fines. The use of a fraudulent copyright notice or the fraudulent removal of a copyright notice may subject the violator to fines up to $2,500.