Cat v. Copycat: Copyright Infringement Litigation Overview.
If you have a registered copyright you may legally enforce your rights against all infringers of that copyright by filing a Complaint.
Copyright litigation begins with the Plaintiff filing a Complaint in federal court. When Plaintiff serves Defendant with the Complaint, the Defendant must file a responsive pleading, usually either an Answer or a Motion to Dismiss, within 21 days of service. If the Complaint holds water and is not dismissed for inadequacies at this point, the parties then engage in discovery.
Discovery includes issuing and responding to requests for information concerning the case. The longest and most important phase of copyright litigation is the discovery phase. When it is completed, the case then proceeds toward a Motion for Summary Judgment. In a Motion for Summary Judgment the plaintiff or the defendant is basically asking the court to use all the facts gathered in the discovery phase and decide the case without trial. The rational is that if there is no genuine dispute as to any material fact, than the judge can decide the matter with all the information presented. If the case survives a Motion for Summary Judgment then it is worth money. As every good litigator knows, if the case goes to the jury, the outcome is highly unpredictable. Thus, at this point all parties have a great incentive to settle.
The main things a plaintiff needs to establish is: First, whether a substantial similarity exists between the two works. Second, whether the alleged infringer had access to the original work.
The remedies available in copyright litigation includes: an injunction, money damages, profits of the infringer, statutory damages, costs, and attorney’s fees. Statutory damages and attorney’s fees are usually only available when the copyright at issue was registered prior to the infringement. In the Unites States a three month grace period may exist. It is of great benefit to be able to recover statutory damages because in copyright infringement matters actual damages are difficult to prove.
What to take away from all this. If you have a copyright register it immediately. Further, if you suspect as the Cat or the Copycat needs more information, consult with a copyright attorney to assess your assets or liabilities.
This content is intended for educational purposes only.
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