obscure Offline Upload & Sell: Off
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p.2 #3 · p.2 #3 · Unusual copyright question - involving parody, my real job, etc... | |
unclemikey wrote:
.......I got a call from the doctor I work for asking me if I sold that photo to them. Of course I didn't. I also do forensic photography for a couple of criminal lawyers here in Richmond. I asked one of them about this and they offered to go after the ad agency. There was no registration of the photograph only my copyright and information in the meta data. That didn't seem to be a problem for either of the lawyers.
Unclemikey, you got lucky. You had a lawyer who wasn't an IP lawyer offer to help and an infringer who realised their mistake up front and was willing to settle quickly. Had the infringer been stupid or adversarial you would quickly have found that Mr Joe is correct and that the non-IP lawyers wouldn't have been much help. Sadly not everyone who is a victim of infringement is as lucky as you.
US Copyright law grants the author copyright at the moment of creation, without any registration. However they can't take legal action for copyright infringement unless the copyright has been registered.
http://www.copyright.gov/title17/92chap4.html#411
§ 411 . Registration and civil infringement actions11
(a) Except for an action brought for a violation of the rights of the author under section 106A(a), and subject to the provisions of subsection (b), no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title. In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute a civil action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights. The Register may, at his or her option, become a party to the action with respect to the issue of registrability of the copyright claim by entering an appearance within sixty days after such service, but the Register’s failure to become a party shall not deprive the court of jurisdiction to determine that issue....Show more →
So, while you can negotiate with an infringer and get them to settle you can't sue unless you first register the copyright. Further more the damages available are severely limited if you did not register the copyright prior to the infringement or within 90 days of first publication (whichever is the latter).
If registration took place prior to infringement/90 days of first publication you can claim statutory damages (without any need to prove actual damage) of between $750 and $30,000 with the upper limit increasing to $150,000 per work infringed if you can show that the infringement was wilful. In addition you can apply for legal costs. If registration took place after the infringement and more than 90 days after first publication then you can sue but only for actual damages (which you would need to prove). No statutory damages and no legal costs.
The legal costs issue is important. Intellectual Property law is a specialised field and practitioners are expensive. Pursuing a copyright infringement case can easily top $100k in fees. If you have registered copyright in time you will be able to get an IP lawyer to take your case on contingency as they know they can apply for fees and a substantial settlement of statutory damages without any requirement to prove actual damage. However, if your registration was not filed in time they will not be able to do this and will instead require that you pay them up front. So the case becomes much more expensive for you to pursue, harder; because you need to prove actual damages and with a much lower likely remedy.
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