Copyright litigation can be incredibly bloody. So it's very important that a copyright holder take certain steps to ensure that if, in fact, they ever do get into litigation their rights are adequately protected prior to the filing of a copyright infringement complaint. The first thing that a copyright infringement plaintiff should think about prior to litigation, is that they have registered for copyright protection. A copyright registration gives not only the ability to file a copyright infringement lawsuit in federal court, but it also gives certain damages benefits.
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Matt: Hi, this is Matt Plessner for Copyright Litigation Radio. Today we'll be discussing how to protect your rights in copyright litigation. To help us understand this we're speaking today with Attorney at Law, John Di Giacomo, from the Travers Legal Office in Travers City, Michigan. John, how are you?
Matt: Well thank you very much for being here. Now John, can you start off by telling us what copyright holders should do before litigation to protect their rights?
John: Well Matt, copyright litigation can be incredibly bloody. So it's very important that a copyright holder take certain steps to ensure that if, in fact, they ever do get into litigation their rights are adequately protected prior to the filing of a copyright infringement complaint. The first thing that a copyright infringement plaintiff should think about prior to litigation, is that they have registered for copyright protection. A copyright registration gives not only the ability to file a copyright infringement lawsuit in federal court, but it also gives certain damages benefits. For example, a copyright registration allows a registrant to get up to $150,000 per work infringed. Which is a pretty substantial amount. So it's very important that they file for registration, actually it's a prerequisite to an infringement lawsuit that they file for registration. Escuse me.
Additionally they should look at additional claims and leverage. Such as unfair competition claims, which is a state law claim. Basically unfair competition is the idea that you can't unfairly compete in business. It's as simple as that. Additionally there may be some other claims. If you've got a, let's say, an article that has a function but it has a design component to it you may have a trade dress infringement claim as well. Finally, there may be additional state law claims there that allow you to add additional leverage. Such as a state law claim for misappropriation. Beyond that there are some other things that copyright holders should think about. First, they should send threat letters prior to the initiation of a lawsuit. Because those types of threat letters will place infringers on notice and stop a claim of willful infringement, which is very important. Excuse me, support a claim of willful infringement, which is important. Willful infringement basically allows you to get a higher amount of damages and often supports claims for attorney's fees and costs.
Finally, it's important that a copyright holder use the circle c to put others on notice, that they have rights in the item that they're claiming is copyrighted. The purpose of that is to prevent against a defense of innocent infringement. A defense of innocent infringement would allow an infringer to claim that they've only damaged the plaintiff, to the extent of $200. It's very important if you want to obtain damages for the infringement of your copyright rights that you ensure that you use the circle c correctly. Finally, you should identify potential damages prior to filing. You should determine whether or not you want to elect statutory damages, which, again, is at $150,000 stick. Which is a substantial amount of leverage. Or whether you should elect actual damages. Because in some cases actual damages may outweigh statutory damages. Those are really the things that a copyright holder should think about prior to initiating litigation.
Matt: Now, once I have filed a lawsuit, John, what should I consider?
John: Well, among other things, there are certainly numerous things that you should consider, but one of those items is that you should save all of the documents that you've collected thus far for discovery. As soon as you initiate a lawsuit you are under a duty to protect those documents from destruction and ultimately you'll have to disclose the majority of them to the opposing party. It's very important that you collect and maintain those documents. Additionally, when you file a copyright infringement lawsuit, it makes a lot of sense to attach a certified copy of your copyright registration to the complaint. Because that copyright registration, again, is necessary for you to file a lawsuit. It's necessary to evoke the court's federal court jurisdiction. So it's very important that you attach that. Additionally, if you've got a license agreement you should probably attach that to the complaint as well. You should also make sure that any state law claims that you're asserting for additional leverage or for additional damages are not preempted by the copyright act. State law claims that look like the exclusive rights under a copyright law are preempted by a federal law, namely the Copyright Act. You wouldn't want to lose those claims which could not only be embarrassing, but it could also be a strategic misstep. It's very important to analyze those issues prior to filing.
Matt: John, besides all this is there anything else that I should consider?
John: Well, the number one thing to consider is that litigation is unpredictable so if you can resolve issues prior to litigation it's usually better to do so. Additionally, first and foremost you should definitely consult with a copyright infringement litigation attorney. The reason for that is because a litigation attorney has experience in this area. They know how bloody litigation can be, and they know what you're going to need to do to prepare for this long, drawn out battle. It's always better, additionally, to protect your rights prior to litigation. Like I said before, the best way to prevent litigation is to ensure that your rights are protected at the outset. If you can do that, you're going to get the upper hand if, in fact, you ever have to file for a copyright infringement lawsuit.
Matt: Well John, I appreciate you talking with us today.
John: No problem. Thanks Matt.
Matt: I'm Matt Plessner and please join us next time on Copyright Litigation Radio.
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