The world of intellectual property is filled with companies and people who live in the color of gray. Attorneys for the plaintiff assert IP rights on behalf of their clients. Lawyers for defendants argue that no intellectual property rights exist or that their clients aren’t infringing on those rights. In the world of copyright law, the tension between those asserting rights and those defending is ever present.
Attorneys for copyright owners register copyrights with the U.S. Copyright Office on behalf of their clients. They help their clients understand how to effectively get their original works registered in order to provide leverage and enforcement. In fact, you cannot sue in federal court in most instances unless your copyrights are registered with the U.S. Copyright Office. A good copyright lawyer will then monitor the internet for possible infringement. When an infringer is identified, lawyers will send out copyright infringement threat letters to alleged violators asserting ownership rights.
On the defense side, an initial review of the copyright registrations will determine if the registration leverage exists. Of course, common law copyrights can also be asserted. The lawyer will compare the alleged copyright with their clients allegedly infringing work and provide an assessment of whether or not there is a high risk of liability. If the copyright is registered, there is a potential additional liability of $150,000.00 plus attorneys’ fees in statutory damages for bad faith infringement. The prospect of statutory damages under copyright law is typically one of the most important issues the attorney will focus on.
One commonly overlooked option for both plaintiffs and defendants is to have your lawyer file a declaratory judgment action in federal court. A declaratory judgment action asks the court to declare rights between the parties; for instance, whether or not copyright ownership exists or whether there is infringement. Attorneys for the plaintiff need to be careful when filing such actions to make sure they are confident that copyrights do exist. The leverage of a registered but unchallenged copyright may be something you would rather keep in place rather than risk. For a defendant, attorneys will sometimes recommend a declaratory action when they are allegedly infringing a copyright and show confidence that the court will either invalidate the copyright or declare their use lawful.