September 16, 2022

What is copyright litigation and how does it work?

Photo by Jackie Hope

Copyright Litigation: What is it? How does it work? Why does it take so long? Why do I have to pay attorney fees?

As you're probably aware, the internet has made it much easier for people to create, find, and use original content. Access to an almost unlimited supply of creative content online has also increased the likelihood of unauthorized use of such content, including the proliferation of image theft of photographers and image creators on a global basis. Faced with repeated copyright infringement and unsuccessful attempts at stopping infringement, some image owners may decide to file a lawsuit over unauthorized use. This is a big decision that starts a lengthy (and potentially expensive) process, and should not be made lightly. But what, exactly, does the copyright litigation process entail? What constitutes “unauthorized use,” and how do authors go about suing over it? What steps can authors take now in order to make the process smoother, in the event they find themselves needing to file a lawsuit to protect their work?

Read on to learn more about the copyright litigation process, and what steps copyright owners in the photography industry can take now to protect themselves later.

Photo by: Tingey Injury Law Firm

What is copyright litigation?

Copyright litigation is the potential result of a copyright infringement upon one or more of the exclusive rights of the copyright owner. These rights include the right to reproduce the work in copies (and sell those copies, if the owner so chooses), create derivative works, and to perform or display the work publicly. Copyright owners also possess the exclusive right to authorize others to exercise those rights.

What types of work can be protected by copyright?

Once an individual creates an “original” work and “fixes” it in a tangible form of expression, that individual is regarded as the author and copyright owner of that work, and the work is protected by copyright. Learn more about copyright in our guide to using copyrighted images.

When should I consider copyright litigation?

Let’s say you are the author of numerous original photographs, all registered with the U.S. Copyright Office, and you’ve identified an unauthorized user who has been persistent in using your works without authorization. You’ve sent multiple cease-and-desist letters (colloquially known as ‘takedown letters’), all with a copy of your registration attached, but the infringement continues.What is your next step? You can decide to file a lawsuit.

But there are a few steps you should take into consideration before you start the litigation process.

Photo by: Iñaki del Olmo

What do I have to be able to show before I commence copyright litigation?

To successfully prove copyright infringement you have to be able to show a number of things (though this list is not final):

  • You need a certificate of registration from the U.S. Copyright Office for the work in question (this is not a requirement for a copyright owner but it is essential to be able to bring a copyright infringement lawsuit in front of a U.S Court, and for seeking attorneys fees and certain statutory damages).
  • Next, you have to show that the work has been “published.” Photographs are considered “published” when copies are distributed to the public in a manner that transfers ownership of the copies, or when copies of a photograph are offered to a group of individuals for further distribution or public display.

Examples of publication in this context include, but are not limited to:

  • Licensing images to a client
  • Posting an image on your private for a client(s) to download
  • Posting an image for self-promotion or commercial purposes

Whether or not an image is considered “published” hinges on whether the copyright owner actively distributed the works or offered to distribute the works for the purpose of further distribution or public display, or whether the owner simply authorized public display.

What is the test for evaluating copyright infringement?

Assuming you have registered your image and you can show the image has been published, now you must be able to demonstrate to a court that one of your exclusive rights as a copyright owner has been violated by the copying. You can do this by providing direct evidence of copying, or by providing circumstantial evidence that demonstrates access to the work, and a substantial similarity between the original work and the copy.

In order to demonstrate the alleged infringer had access to the work, you must be able to show that the infringer had an opportunity to view or copy your work. This can be shown by:

  • Evidence of a chain of events connecting your work and the infringer’s opportunity to access and copy the work;
  • Evidence that your work is widely disseminated; or
  • Demonstrating that the similarity between your image and the copy is to the degree that it is highly unlikely they were created independently

Extrinsic and intrinsic tests for copyright infringement

With respect to the third option above, there are two tests employed by courts to determine whether the original work and the copy are substantially similar: the extrinsic test and the intrinsic test.

  • The extrinsic test is understood to be an objective test, and it requires establishing similarity through the help of experts and analytic dissection.
  • The intrinsic test is understood to be more subjective and compares the response of an imagined, ordinary reasonable person to the similarities between the two works to the expert response.

The extrinsic and intrinsic tests are complex, and full articles could be written about each. Suffice it to say, satisfying both tests can be a lengthy process and is a fitting segue into the next section.

Photo by: Brett Jordan

Why Does Copyright Litigation Take So Long?

From a US perspective, from start to finish, copyright litigation proceedings can last years. This is in large part, a result of the design of the U.S. legal system. They want to give both parties ample opportunity to present their case, as well as ample time for the judge or jury to consider the evidence presented by both parties. Pleadings, motions, briefs, and discovery all come with separate timelines and procedures for completion. It is also true that there are a finite number of courts and judges in the legal system, and all cases must be channeled through the existing venues.

A Note on Attorney Fees

Section 505 of the Copyright Act allows courts discretion over whether to “award a reasonable attorney’s fee to the prevailing party.” As previously mentioned, you must have your work registered with the U.S. Copyright Office before you bring a lawsuit, if you are intending to seek attorney fees.

Assuming proper registration, courts make decisions regarding attorney fees based on the facts of a particular case. In doing so they consider, among other things:

  • The degree of success obtained on the claim;
  • Frivolousness (e.g. a baseless, unreasonable claim);
  • Motivation; (e.g., the motivation for filing for the lawsuit and if it could have been a more limited case)
  • Objective reasonableness of factual and legal arguments;
  • The need for compensation and deterrence (to discourage the litigator from similar acts)

Fight copyright infringement with Pixsy

Eliminating any chance of copyright infringement is just not realistic but if you have visual works that you wish to protect, Pixsy can be a great choice. We are an award-winning online image protection platform with one main goal: to find and fight image theft.Our reverse image search tool and AI find accurate matches of your images online and you can use this monitoring service completely free for up to 500 images per month. We also help you with recovering compensation for unauthorized use of your work. You can send legally binding takedown notices worldwide and in any case, we help you take your case to court if that is what you’d like. Even better: if you don’t win, we don’t ask for a fee. If you’re not sure where your images are being used online, try Pixsy.

About the Author: Lauren Brown is an attorney currently working in-house at a digital services firm. She is a graduate of the University of Connecticut School of Law with a background working as a corporate copyright assistant, and has received accolades for her work in copyright law.

Disclaimer: The information provided in this article does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available are for general informational purposes only.

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