Copyright Photographers' Rights

Copyright Infringement – How To Recover Damages When Someone Steals Your Intellectual Property

Discovering Copyright Infringement

Often photographers, authors, software designers and musicians post their intellectual property on the Internet, only to discover shortly thereafter that someone copied their intellectual property and is either using it for personal benefit, or is selling it to others without the creator’s permission.  As a copyright owner, you have the right to confront intellectual property infringement and force such persons to remove your protected content from their website.  But did you know that you could also recover hundreds of thousands of dollars in damages for their copyright infringement?

If your copyrighted content is registered with the United States Copyright Office, you are entitled to recover up to $150,000.00 for each violation, plus attorney’s fees.  In addition, under the Digital Millennium Copyright Act (DMCA) even if your material is not registered, you can recover an additional $25,000.00 for each copyright infringement violation.

This means that each time someone copies your photo, blog post, or song and re-posts it on the Internet without your permission, you can potentially recover up to $175,000.00 per copyright infringement.  And the best part is that since attorney’s fees are recoupable, most copyright attorneys will take a good case without charging you.

Knowing this, it is easy to see why some photographers and authors revolve their entire online presence around trying to incite those with deep pockets to “lift” their content.  Some have been very successful too.

Copyright Infringement Laws & Registration

First, let us talk about registration.  Why register?  If you do not register with the United States Copyright Office, you will only be able to recoup a small fee if you sue (in the $750.00 range), and you will have to pay for your own lawyer’s fees, which, as you can imagine, will far exceed $750.00.  Registration gives you access to the $150,000.00 prize for each instance of copyright infringement discovered.

You can register your copyright online, and it only costs $35.00.  You can also register your intellectual property in essentially unlimited batches of content.  So, for example, if you are a blogger or forum owner, and you have 10,000 articles or posts, you can register all 10,000 articles or posts as a “collection,” and pay one $35.00 fee for registration.

Now, there are some catches to the registration process.  For instance, in order to be eligible for registration, your material has to be “unpublished,” or if already published, you have to register within three months of publication.  If your material has been published for longer than three months, it will be difficult to recover financially for instances of copyright infringement.  For instructions on how to register on-line, visit www.naturescapes.net/docs/index.php/articles/341.

The DMCA

Now that you are registered, let us talk more about the DMCA, and then we’ll see if anyone is copying your content.  The DMCA was passed by Congress in 1998 and criminalizes the act of circumventing the digital protection on copyrighted works.  In other words, if you put a watermark, or a “© 2010 [your name]” notice on your content, and someone steals your content and removes that mark, you are entitled to sue them for damages under the DMCA.  Recovery ranges from $2,500.00 to up to $25,000.00 if the copyright infringement was purposeful, i.e., someone purposely erased your watermark.  Recovery under the DMCA is in addition to copyright infringement damages, and is available to all content owners, regardless of whether you registered your content or not.

How do you find out if someone is stealing your content?

If your material is written content, such as a blog post or an article, you can do a free search with a service such as www.copyscape.com to see if there has been any unauthorized copying or outright copyright infringement.  If your content consists of photos, you can do a free visual search through www.tineye.com to look for copying.

Okay, I found someone stealing my material.  Now what?

Next, ask yourself if it is possible, or worth it, to sue the person stealing your content.  If your content is posted on the Internet, do a www.whois.com search, and locate the owner of the domain.  If the owner is not located in the U.S., it might be difficult to sue under U.S. law and recover.  Is it a corporation?  If so, try to research the corporation through their state’s department of state website, and try to determine if the corporation is profitable.  You can obtain a judgment against anyone guilty of copyright infringement, but most lawyers will not litigate your case for free unless the person or company you are suing has the financial means to satisfy the judgment.

If you find someone stealing your content, and they have the financial means to pay a judgment, contact a copyright lawyer.  Most will consult with you for free, and will tell you if you have a good case.

If you do obtain a judgment, all States allow you several years to attach assets and collect on it.  New York allows judgment creditors 20 years to collect on a judgment.  This means that if you obtain a judgment against someone today, and 18 years later they win the lottery, you can collect your money, plus 9% interest per year.  Every State’s laws are unique, however. Consult with a copyright infringement attorney to learn more.

About the author

Michelle Murtha, Esq.

Michelle Murtha is an entertainment attorney and intellectual property litigator from Long Island, New York. You can reach her directly here.

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