If somebody infringes your copyright, you are entitled to file a lawsuit in federal court to enforce your rights. Remedies include obtaining an injunction or restraining order to prevent additional violations, an award of money damages, and possibly attorneys’ fees. The court can also order while an action is pending that any copies that are alleged to be in violation of the copyright owner’s exclusive rights, as well as templates for reproduction and records, be impounded. When making its final orders, the court can order the destruction or disposition of all the infringing copies that violated the copyright owner’s exclusive rights, as well as the templates for reproduction.
Generally, if a person has a good reason to believe that he or she is not infringing, the damages that the person will have to pay as an innocent infringer may be nominal. The court will also order the innocent infringer to stop infringing. Defenses that may be raised in response to a lawsuit to enforce a copyright include that too much time has passed between the infringement and the lawsuit, that the infringement was innocent, that the infringing work was created independently, that the infringer had a license from the original owner, and the fair use defense.
In order to bring a civil lawsuit to enforce your copyright, you have to register your work with the Copyright Office. The Copyright Office is an office of record, not an enforcement agency, and cannot offer legal advice.
There is a preregistration procedure in place at the Copyright Office in order to provide an ability to enforce copyright during the development stage for certain classes of works. Work that can be preregistered must be unpublished, be in the process of being prepared for commercial distribution, and fall within a class of works with a history of pre-release infringement, such as motion pictures. Pre-registration allows a copyright owner to sue for infringement if it is infringed while it is being prepared for commercial release. The Copyright Office also permits expedited processing or “special handling” of an application for registration of a claim to copyright in a limited number of cases if an author has a compelling reason for expedited processing, such as potential litigation.
If you have registered within three months of the work’s publication date or before the infringement occurs, there is a legal presumption that your copyright is valid. Ordinarily, you have to prove actual damages to recover in a copyright lawsuit, but if the work was registered before the infringement, you can recover statutory damages and possibly attorneys’ fees without proving the damages. Statutory damages are awarded in an amount up to $150,000.
Criminal Prosecution for Copyright Infringement
In some cases, a copyright infringement is not only a matter of civil litigation, but also a criminal misdemeanor or felony. The U.S. Department of Justice enforces this aspect of copyright law through criminal prosecution. Under Section 506 of the Copyright Law, anybody who willfully infringes a copyright can be criminally prosecuted if the infringement was committed for commercial advantage of financial gain, by reproducing or distributing a copyright work during a 180-day period of one or more copies or phonorecords that retail for over $1,000, or by distributing work that was being prepared for commercial distribution by making it available on a computer network that the public can access when the person knew it was intended for commercial distribution. Among other penalties, forfeiture, destruction, and restitution may be ordered.