If You Want to Sue for Copyright Infringement
by Lee Wilson
People who believe that their copyrights have been infringed often have no idea how complicated copyright infringement lawsuits are. This doesn’t mean that there are no issues worth going to court over—litigation is sometimes the only way to settle some disputes or to pursue that elusive goal, justice. However, the U. S. judicial system is so complex that a lawsuit can leave you as bloodied as a fistfight; even if you win you are bruised by the experience.
Beginning a Lawsuit
The “statute of limitations” (the period within which you must file suit) for copyright infringement is only three years from the date the infringer commits the infringing acts, so don’t wait too long to find out whether you actually have grounds for an infringement suit. Ask a lawyer you trust to refer you to a copyright lawyer for evaluation of the merits of your claim. A copyright lawyer should be willing to tell you whether there has been an infringement and, if so, whether you’re likely to prevail in court.
If your own lawyer can’t refer you to a copyright lawyer, call the bar association in the largest city near you and ask for names of lawyers who specialize in copyright law. Another very good way to find a lawyer capable of handling your copyright case is to consult a trade organization that promotes the interests of people in your creative profession.
Lawyers’ fees run from a low of around $125 per hour to $500 per hour or more in some cities. What your lawsuit will cost, in attorneys’ fees and costs such as court filing fees, costs of court reporters for depositions, expert witness fees, etc., depends mostly on how complicated the issues in your case are, how many people are involved, how well-financed they are, how vigorously they defend against your claims, and whether the suit must be brought in another city or can be filed where you live. However, even a relatively uncomplicated suit can cost you several thousand dollars to bring to the point of trial.
Sometimes lawyers will agree to represent clients in lawsuits on a “contingency fee” basis. This means that the lawyer will represent the client without payment for her or his services during the course of the lawsuit for a large share, usually one-third, of any sum eventually awarded the client by the court. Before accepting any case on this basis, a lawyer will look at the amount of legal work involved, the probable amount of damages that could be awarded, and the likelihood that the plaintiff will win the suit. And bringing a suit even on a contingency fee basis can still be expensive for the client, since the client may have to pay all the expenses of the suit, which can be considerable.
The Course of a Lawsuit
Litigation is a long process, and in real life, most of it takes place before the trial. The first thing your lawyer will do after investigating the facts surrounding your grievance against your adversary and the law governing your claim is to draft what is called your “complaint.” A complaint is a carefully-worded document that sets out the facts of your dispute, relates them to the law, tells how the defendant has transgressed your rights under the law, and asks for certain “relief” from, and on account of, the defendant’s transgressions, such as an injunction (an order from the court directing the defendant to do something or to stop doing something) or an award of damages (money awarded to compensate you for your losses or punish the defendant).
The lawsuit officially begins when your complaint is filed with the court. The defendant has a specified period of time within which to file an “answer” with the court which responds to each allegation made in the complaint, giving the defendant’s side of the matter.
In many suits, before and sometimes also after the answer is filed, the defendant will file various motions objecting to one or another important procedural aspect of the lawsuit in an effort to have the case dismissed, or, at least, to delay its progress. Your lawyer must file a response challenging any such motion and must support your position with a written “brief,” which is a concise statement of the law and facts relating to the issue raised in the defendant’s motion and which is meant to persuade the judge that the defendant’s motion should not be granted. These motions can continue for a frustratingly long time.
Meanwhile, another interesting and, for the lawyers, often lucrative part of the lawsuit is going on; this is “discovery,” the minuet between the parties to the suit by which each litigant “discovers” from the other as many facts as possible related to the lawsuit. Discovery tools include interrogatories (written questions), requests for production of documents (written requests for pertinent paperwork), and depositions (oral testimony taken out of court, but under oath and recorded by a court reporter). Discovery can also take forever.
Once the complaint and answer are filed, all the motions are made, answered, and ruled on by the court, and discovery is complete, the case can be set for trial. Both your lawyer and the defendant’s lawyer will pore over all the facts they’ve gathered, assess the strengths of their arguments and map out their plans to present those facts and arguments in court before the judge, if the trial is to be a “bench trial,” or the jury.
Lots of lawsuits are settled just prior to trial, sometimes literally in the hallway outside the courtroom just before the proceedings are to begin. This is because no one, least of all lawyers, wants to go through a trial if a settlement is offered on any basis that is at all acceptable. Even more persuasive is the attitude of most judges, who actively encourage settlements to reduce their heavy workload, to save taxpayers’ money, and to clear perpetually-clogged court dockets.
A settlement agreement between the litigants also usually eliminates the possibility that the lawsuit isn’t over even after the fat lady sings. Many losing litigants can find reasons to appeal the judgments entered against them by their trial courts. Sometimes they appeal up the ladder of courts more than once, on one ground or another, until all the people involved in the original lawsuit feel that they have unwittingly wandered into Charles Dickens’ famous never-ending fictional lawsuit, Jarndyce v. Jarndyce.
If you win your infringement suit, the court may issue a permanent injunction that prohibits any further use of the work that violates your copyright. It may order the seizure and destruction of any copies of the infringing work. It may award you “actual damages” (the profits the infringer made from the infringing work and the money you lost because of the infringement) or, alternately, “statutory damages” (a range of money damages the court is allowed to award you in lieu of actual damages), the expenses of the suit that you’ve had to pay, and attorneys’ fees. Statutory damages available under the copyright statute now permit awards up to $150,000.
This article is adapted from a chapter of the third edition of The Copyright Guide, available from Allworth Press. Lee Wilson is a Nashville intellectual-property lawyer and writer.
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