What is in a Copyright?
Copyright is protected under the U.S. Constitution under the Copyright Act. It protects one’s innovative written and recorded works that have been recorded in anything from from manuscripts to computer code, website content to videos, musical scores to musical recordings.
The Trend: Fewer Copyright Litigation, But Larger Copyright Law Suits
Protecting copyright is a national interest since copyrighted works are estimated to add over $930 billion in value to the United States, almost 7% of our GDP. (Read More).
- Between 2006 and 2011, Copyright lawsuits fell 60%, while last year saw a slight increase.
- However, a majority of the claims not being filed are those that are on the smaller end of the spectrum (See here).
- Approximately 60% of copyright infringement lawsuits filed in the last five years have to do with Internet content.
- More and more copyright claims are being brought by contingency fee attorneys, which last year coincided in an uptick in copyright suits filed.
- The mean copyright settlement in 2011 was over $320,000 in cash, which does not reflect the value of non-cash relief such as injunctive relief and other equitable remedies.
Copyright Defendants Have Much to Lose If They Mishandle Their Copyright Cases
Generally, whether one has violated a copyright is fairly black and white. One either did or did not commercialize someone else’s recorded work.
The primary defenses one typically has to paying damages for violating a copyright case are that it was a fair use, the copying was insubstantial, statutes of limitations/laches, and standing (i.e., the plaintiff doesn’t own or did not register the copyright).
Copyright defendants have more to lose than just money or the right to sell and earn a living or profit off of their published works. While fewer suits are being filed, more lawsuits are being filed and settled for substantial sums of money and additional restrictive covenants or forward licenses. (See here)
However, there are collateral impacts from many copyright settlements such as restricted use of content, assignment of content or webpages, attribution requirements, and future licenses or royalty payments. The right settlement at the right time is crucial for a defendant whose own business depends on the allegedly infringing content.
The Frontier in Copyright Law: Internet Copyright Rules (Ignore them at Your Peril)
Ask any Internet expert, and they will tell you that “Content is King.” Content drives SEO (Search Engine Optimization), determines the size and scope of a website’s regular audience, and therefore drives the site’s revenue and valuation.
Thus, a website owner’s copyright over the form and substance of the content provided by the site (unless it is a sales site) is often a key element of the website’s value. The unlicensed use of that content is not only a felony, it can deprive the site owner of substantial revenue, in many cases, tens, if not hundreds of thousands of dollars.
So it is not surprising that approximately 60% of copyright infringement lawsuits filed in the last five years have to do with content on the Internet or that is provided over the Internet.
Despite its stated purpose to propagate and increase freedom and content on the Internet, the Digital Millennium Copyright Act, passed in 1998, actually strengthened the rights of copyright holders when their content is on the Internet, while simultaneously providing safe harbors to potential violators such as notice and certain good-faith type defenses (Read the Act Here). However, the Act still only applies to those who have registered their content with the Copyright office—which many Internet site owners routinely fail to do.
The Cost of Failing to Register a Copyright
A copyright holder cannot sue for copyright infringement without first registering the copyright with the copyright office of the U.S. Patent & Trademark office. Registering a copyright is actually quite easy. Although the copyright vests the moment you cement the content in one of the statutorily required forms (see here), infringement is not actionable until after the copyrighted work has been duly registered.
That also means that you may not be able to claim damages that accrued prior to registering your copyright.
Since, on average, copyright infringement can take a year or more to detect, that can mean substantial damages lost by not registering the work at least as soon as it is placed into the public domain.
On the flip side, the cost and time it takes to copyright a work is not as substantial as one might think. (Read more).