32. What is infringement and how does one enforce a copyright against infringement?
Copyright infringement occurs when a copyrighted work or some portion of the work is reproduced, distributed, performed, or displayed without authority. Authority must be obtained from the copyright holder. A copyright is enforceable through a federal court action. That is, the copyright holder can bring a federal lawsuit against someone infringing upon the copyright. While copyrights attach without registration, the copyright holder must register her copyright prior to bringing a federal court action. Aside from allowing for litigation, a registered copyright provides a public record for the copyrighted work at the time of filing. Once in court, the copyright holder will seek an injunction from further infringement and any monetary damages suffered as a result of the infringement. The registered copyright is presumed valid if the registration occurs within 5 years of creation. This means that any infringing party has to overcome this presumption in court. The federal statute providing for copyrights allows for statutory damages (up to $150,000) and attorney’s fees (if the registration took place within 3 months of publication of the work).
• Note: Copyright infringements are routinely resolved through negotiation of the parties.
• Discussion: Why do you think the copyright enforcement process requires registration? Are you convinced by the benefits of copyright registration? Can you think of any disadvantages?
• Practice Question: Mary wrote a funny poem with great lyrics. One day, when listening to the radio, she hears a couple of lines from her poem in a popular song. If Mary decides to bring a legal action against the performer, what process will she have to follow?