Spin the World


litigation of copyright claims


It is this author's opinion that copyright law should be viewed with a healthy dose of commercial reality. Copyright protection is primarily concerning with protecting a market for creative works. The more prominent a position a work occupies in the marketplace, the more closely it will be scrutinized for the presence of "borrowed" material and the target of copyright infringement lawsuits. Conversely, the more obscure a work, the less likely its "borrowed" elements are to sap the market for those works, the less it will be scrutinized and subject to copyright infringement lawsuits.

Frequently, the artists' real struggle is to create something and capture attention. Undertaking to negotiate copyrights for a project with little change of commercial impact may be a futile exercise. There may be some psychological reasons to deal fairly with friends and acquaintances, but it is this author's opinion that there is a safe haven for modern artists, under the radar, out of the mainstream of commerce, where it is appropriate for an artist to practice his or her craft in a modern style.

    This section is still under development. Hopefully, we will publish updated in Summer 2007.

    Statute of Limitations. Is there a discovery rule?

    Statutory Damages.

    Standing Requirements.

    Implications of Copyright Registration.


    Liability issues. Individual, Vicarious and Contributory liability.

    The Digital Millennium Copyright Act limits the liability of internet service providers from copyright infringement by their users if they adhere to and qualify for certain prescribed safe harbor guidelines and promptly block access to or remove allegedly infringing material from their systems if they receive a notification claiming infringement from a copyright holder or the copyright holder's agent

    Costs and attorney's fees.

    A copyright owner can grant another exclusive as well as non-exclusive rights. For example, artists grant non-exclusive performance rights to ASCAP to facilitate collective enforcement. Because the collective rights organizations do not have exclusive copyrights, they cannot sue for infringement on their own behalf (they enlist artists as plaintiffs).

    This section is still under development. Hopefully, we will publish updated in Summer 2007.

Illustrative Cases:
    La Resolana Architects v. Clay Realtors Angel Fire (10th Cir. 2005) (Full Text - Washburn) (Full Text - PDF)
    Registration requirement of s411 requires that the Copyright Office actually register the plaintiff’s work. The requirement is not satisfied by plaintiff’s merely applying for copyright registration.

    BMG Music v. Gonzalez (7th Cir. 2005) (Listen to Oral Argument) (Read Opinion - PDF)
    Court finds that music downloader is not entitled to jury trial on "fair use" defense because clear that downloader did not own legitmate copies of all downloaded songs. The Court also held that statutory damages properly imposed against music downloader.

    Feltner v. Columbia Pictures Television, Inc. (U.S. 1998) (Listen to Oral Arguments - Oyez) (Read Opinion - Justia)
    If a party so demands, a jury must determine the actual amount of statutory damages under s504(c) of the Copyright Act in order to preserve the substance of the common-law right of trial by jury.

    Island Software & Computer Service, Inc. v. Microsoft Corp. (2nd Cir. 2005) (Full Text - PDF)
    High end of range of statutory damages should not be awarded against seller of counterfeit software absent direct evidence that seller willfully infringed plaintiff's copyrights.

    Ory v. McDonald (9th Cir. 2005)
    Plaintiff's claim that defendant's song infringed on copyrights was barred by doctrine of laches because of 30 year delay in bringing suit. Plaintiff stands in place of prior copyright owner(s) with respect to affirmative defense of laches, even though plaintiff recently obtained copyrights and could not have brought suit sooner.

    Bonner v. Dawson (4th Cir. 2005) (Full Text - PDF)
    Architect whose exterior building design was infringed by defendant builder is not entitled to defendant's profits from use of building where the evidence shows that defendant's profits did not result from the design of the building exterior. Plaintiff entitled to actual damages.

    Silvers v. Sony Pictures Entertainment, Inc. (9th Cir. 2005) (Full Text - PDF)
    Plaintiff with assigned right to sue for infringement of a movie script does not have standing to sue unless plaintiff also has interest in copyright of script.