Filing a claim under the Copyright Act, 17 U.S.C. § 101
Disclaimer: Readers are advised not to take this post as legal advice given that the law and its interpretation can change from time to time.
In the Computer Weekly article, “Automated image recognition: How using ‘free’ photos on the internet can lead to lawsuits and fines”, it mentions that 40 cases were found tied to the copyright owner as the plaintiff. Of the cases I observed, the cause of action was tied to the Copyright Act, 17 U.S.C. § 101.
Separately from the article, the following cases noted that the claims were asserted and/or relief was sought under this section of the code:
- Great Minds v FedEx Office and Print Services, Inc.
- Sara Pope v The Mill Group Inc.; Kylie Jenner; NBCUniversal Media, LLC; E! Entertainment Television, LLC; Does 1–10
- Matilde Gattoni v Tibi, LLC
The definitions provided in this section are used throughout Title 17, which focuses on copyright law.
This post contains a brief summary of considerations to be made when plaintiffs file a claim under this section. I recommend when filing not to do so in an abusive manner.
Registration
Firstly, the 2019 decision by the U.S. Supreme Court (SCOTUS) in Fourth Estate Public Benefit Corporation v Wall-Street.com determined that plaintiffs must be in adherence with the Copyright Act’s U.S. Copyright Office registration requirement detailed in 17 U.S.C. § 411 prior to filing a lawsuit.
While cases prior to Fourth Estate, including the ones cited in the beginning of this post, did not refer to registered works, it is important for plaintiffs to ensure the works are registered and not simply just in the registration process.
Infringement without fair use
Secondly, the alleged infringer’s actions should be determined as an infringement of the copyright owner’s rights in contravention of 17 U.S.C. §§ 106 and 501 and without the exception in 17 U.S.C. § 107 regarding fair use applying.
The U.S. Copyright Office maintains an index of cases in which fair use was a key question to be addressed by the court. I will write more on fair use in the future, but it is important for plaintiffs to ensure prior to filing that the alleged infringer did not use the work in line with fair use provisions.
Electing to seek one or more remedies
When filing, the plaintiff can seek a number of remedies under 17 U.S.C. §§ 502 to 505 and others mentioned in Chapter 5 of Title 17, which include injunctions, impoundment of infringing articles, disposition (destruction) of infringing articles, damages and profits, and costs and attorney’s fees.
- 17 U.S.C. § 502 gives courts the power to grant injunctions to prevent or restrain copyright infringement
- 17 U.S.C. § 503 gives courts the power to order the impounding of various artifacts including unauthorized copies of the work, materials used to help create those copies, and documentation related to the activity of violating the owner’s rights — they can also order the destruction or other removal of the infringing copies
- 17 U.S.C. § 504 covers the owner’s entitlement to recover damages and profits tied to the infringement, noting that they can recover actual damages and profits or statutory damages of up to $150,000
- 17 U.S.C. § 505 covers the court’s discretion to award costs or fees to parties involved in the suit, explicitly mentioning that they may award legal fees to the “prevailing” (winning) party
Fees
While looking for examples of professionals discouraging litigation, I ran across this quote that is attributed to President Abraham Lincoln, “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.”
I generally oppose litigation because it is a costly endeavor that opens up the opportunity to receive an unfavorable outcome, and worse off, the parties do not get to move on. Only in cases where a settlement cannot be agreed between the parties regarding a serious matter should litigation be considered, but even then mediation and arbitration could potentially be better alternatives to going to court.
Aside from legal fees, there are costs to having experts and witnesses, court fees, and there is the hidden cost of lost opportunity due to the time that needs to be spent on litigation.
Prospective plaintiffs should be prepared for the potential costs and time that will be spent in achieving closure (if it can even be achieved).
This is a personal blog. The views and opinions expressed in this article are those of the author and do not represent those of people, institutions or organizations that the author may or may not be associated with in a professional or personal capacity. All information is provided on an as-is basis.
