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Legally Speaking, It Depends: Copyright in Court

Whatever you write is likely pretty well protected as soon as you write it by the laws of copyright. But Chris Schiller explains what happens to copyright in court.

By now you realize that whatever you write is likely pretty well protected as soon as you write it by the laws of copyright. That's a wonderful, comforting feeling knowing that if someone attempts to usurp your rights there is an avenue paved and ready for you to pursue them to find justice. Knowing it's there is cool, but, what exactly happens if in those rarest of circumstances you actually have to use that road to take someone to court? As always, legally speaking, it depends.

Though I am strictly a transactional lawyer and therefore don't travel this path myself, this article is my attempt to give a basic understanding of the process of taking a copyright case to court, what to expect, what to prepare for and some of the questions that'll need answers as you go along.

Every case is different

Specifics being key to every case, this effort will only lay out the big-picture elements of what it might be like to take a copyright claim to the courts. Your experience will vary. But knowing the potential pieces and what is expected might be beneficial if you need to take a walk down that road.

copyright in court

Before you start, you did prepare, didn't you?

Whenever a case is before a court, both sides attempt to sway the arguments in their favor by providing evidence. At best, this evidence provides the “rightness” of their position. But the job of proving who is right is not always easy, nor is it seldom balanced. You've heard the adage “innocent until proven guilty,” right? That's a reflection in the criminal law world of the concept of the Burden of Proof. This is the legal construct where one side of an argument is assumed to be better than the other, all things being equal. The side under the burden of proof is charged with proving that the weight of evidence is actually in their favor. Think of it as the scales of justice are usually tipped to one side. The other side must put evidence on the scales disputing the other sides claims enough to tip them into their favor. Then the burden lays on the previously favored side to prove the opposite. The Burden of Proof is a teeter-totter that tips back and forth during the course of a typical trial.

Usually, the initial Burden of Proof falls on the accuser's side. The defender doesn't have to prove they're innocent of the claim. If you are in a position where you are to accuse another of infringing your copyrights, then you will have the initial Burden of Proof to show enough evidence to support the accusation.

That's why you keep records of when you wrote your script, who you've shown it to and each stage of its progress. These are all elements that can be critical in establishing the claims you need to in order to start the accusational process within the courts.

You will also need to find a lawyer willing and able to take your case to court. Copyright law is not a traditional practice area so choosing a lawyer who is versed enough in its intricacies will take a bit of research. And lawyers don't come cheap. If the case is interesting in some regard, you might be able to find a competent lawyer willing to take the case on contingency – meaning their fee will be a large percentage of the outcome, contingent on winning the case. If you can't afford paying the attorney's fees outright, the bigger bite of a contingent arrangement might be more financially attractive. But remember the attorney isn't the only one needing money.

There is a very large list of other fees that would need to be paid during the course of the case. The court fees can be quite steep and go on for years. Then there are payments for the depositions, records copying, filings and on and on. Taking someone to court, even if you'd eventually win, can be quite a financial burden that needs to be planned for before you take the first steps.

First you need to file

The first step toward the courthouse might actually be to turn around and head to the copyright office. Before U.S. citizens can file a copyright case in Federal civil court it is required that the copyright be registered with the Copyright office. Not having filed previously can cause a serious delay when trying to stop someone who is actively infringing your rights. The Copyright office has expedited procedures available, for a fee, to mitigate this delay somewhat, but, you must file before you can sue.


  • Interestingly, foreign nationals seeking copyright protections in U.S. courts actually don't have to file prior to suing. It's a residual effect of the restriction against formalities that the relevant international treaty imposes. This is one of those odd and rare areas where foreigners are treated slightly better than nationals.
  • For U.S. citizens it also depends in which Federal judicial district you file the case as to how long you need to wait before going to court, because there is currently a conflict between jurisdictions as to whether merely filing for or an actual issuance of copyright is sufficient to accept a filing.

You will be filing in Federal Civil Court. Though there are Criminal Copyright statutes (those alluded to in the oft ignored FBI Warning slates on DVDs, for example) they are not available for individuals to initiate. This is where the parties pick up their official titles in court. The filer is called the plaintiff and the one accused of the offense is the defendant. Initially the burden of proof is on the plaintiff to prove that there is even a case to be heard.

The proof is in the pudding (or wherever you stowed that paperwork)

A copyright registration, among other things, serves as an assumption of the facts that you did indeed create the work and did it when you said. The burden of proof then shifts to the defendant to uncover facts that contradict those assumptions. If the defendant refutes claims of originality or dates, here's where all that record keeping you did comes in. If you also filed your script with the WGA, here's where that benefit comes in. If you can present actual evidence, like the WGA proof, of your creation of the work and the dates you claim it existed then the presumptions of the copyright filing are replaced by the reality of your proofs. If the defense refutes with counter-evidence the assumptions of the copyright office registration and you don't have any proof to reestablish the facts, then you lose.

But let's assume all your facts and proof are sufficient. What next?

Elements of the case

There really are only two elements to prove with a copyright case: access and actualinfringement of rights. Even though there are only two elements, the plaintiff needs to prove both and that's not always as easy as it first might seem.

Access is a simple enough, required concept: for someone to violate the rights of a copyrighted work that person needs to have had access to the work. My favorite adjudicator (and not just because of his name) Judge Learned Hand eloquently and rightly pointed out that even identical works are not necessarily copies of each other. Similar ideas can germinate in completely separate minds and develop along strikingly similar paths without either having knowledge of the other.

So for there to be a case of copyright infringement, the plaintiff needs to prove that the defendant had access to the work in question. This is where the evidence of to whom you showed the work comes in. If the defendant cannot be shown to have had access there is no point going further with the case. If this isn't a direct connection, then all the dots must be believably connected.

Once access is established, then we turn to the question of whether there was Actual Infringement. This is whether any of the some-number-less-than-six statutory rights in the work's copyright were violated. At this point the acts done by the defendant are compared to the prohibitions listed in the statutes.

Unfortunately the abundance and flavors of possible acts combined with the sometimes surprisingly limited scope of and limitations to the rights mean this element is usually the most difficult (read expensive) part of the case. Evidence and counter-evidence flies from both camps. If enough evidence can be piled against the burden of proof on the plaintiff's side, you're almost home free in showing infringement. There's just that little matter of possible defenses.

Defenses (here's where fair use comes in)

There are two classes of defenses in copyright cases that are often lumped together, but, are distinct.

Exemptions – Statutory exemptions are a very powerful defense to an accusation of copyright infringement available to a very small, distinct group of defendants. There is no infringement if an exemption applies regardless of whether the actions of the defendant would otherwise directly violate the plaintiff's rights.

Exemptions are statutorily stipulated, specific actions and actors that are exempt from copyright protections. One example is the right for archivists and libraries to copy protected works as an act of preservation and limited dissemination. If the qualifying facility acts exactly according to the applicable statute's strictures there is no violation of the owner's copyright, even if the same action done by someone else would be.

If an exemption applies the case ends without a finding of copyright infringement.

Exceptions – The other class of defenses require that an infringement has been found. They are the “Yes, but...” category of defenses. These apply when extenuating circumstances, public interest or national security take precedent over the rights of the copyright owner. This is where the world famous and mostly misunderstood Fair Use defense lies. (A subject for another column.)

Exceptions to copyright are a balancing act between rights of different natures and must be weighed carefully by the court on a case by case basis taking everything into account.

Damages (real and imaginary – ah, I mean statutory)

The legal term for winning is Remedies with Damages and Injunctions being the most useful remedies in a copyright case.

Real damages are those that can be shown to have been suffered directly by the copyright infringement. This includes both the losses suffered by the plaintiff as well as the gains made by the defendant as a result of the infringing acts. The problem comes in proving, not only the dollar figures involved, but, separating out specifically those whose source is only the infringing act. This can be quite difficult to impossible in a lot of cases.

Statutory damages were created to relieve some of the burden of trying to suss out actual damages. With limitations, the statute sets out a range of damages that can be assumed to have been suffered. The limitations include that statutory damages can only be awarded for infringements that happened after the work was registered with the Copyright office. Prior infringements, even proved, won't qualify.

Injunctions are often a significant award for a victorious plaintiff because they can force the defendant to stop doing the thing that was infringing. And they can even be granted on a temporary basis prior to the resolution of the case if the defendant's acts would be damaging if continued during the trial and the plaintiff has a good case likely to win in the end.

Of course, if you win the case and are awarded damages or an injunction you also have the recourse of taking the defendant back to court if they fail to comply with the court's orders. What fun.

Truth and Consequences

Though you have every right to pursue legal recourse if you feel someone has infringed your copyrights, as a practical matter you might pause when considering this option. Being that this industry is built on relationships and trust, consider the reputation you as a writer might acquire if you pursue this course. Will other producers be as willing to do business with you if you are perceived as being litigiously trigger happy? Even if they are willing to work with you, will you be able to devote the time they need if you are distracted by a long, drawn out legal battle demanding your attentions?

But trust is a two way street. Unfortunately, there are nefarious producers out there aware of the reputation hit a writer can suffer if they sue to protect their legitimate rights. Those producers might be more willing to take advantage of the writer because they perceive less risk of getting caught. Care should be taken in choosing who you enter into deals with since there's a lot at stake if they prove untrustworthy.

Still, no one should fault you for seeking the justice you are due. Consider all the consequences and complications that might follow when weighing whether it is worth it in your own big picture. As always, it depends.

Editor Note: As always, the advice read in this column is not binding legal advice but merely opinion. Please seek a professional attorney for your own specific needs, if necessary.

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