Copyright Lawsuits: Critical Issues Before Filing Copyright

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Copyright Lawsuits: Critical Issues Before Filing

Retaining an attorney to craft nonfrivolous arguments for your claim may be advisable as a means of avoiding sanctions.

A thoughtful plaintiff or potential plaintiff who believes their copyrighted work has been infringed will most likely wonder or ask their lawyer: "Is my claim reasonable?" Why is this question absolutely necessary?

While every lawsuit may have a different set of parties and facts, Rule 11(b) of the Federal Rules of Civil Procedure, the set of rules that govern how and under what conditions claims are litigated in federal court, imposes constant requirements on counsel, litigants who represent themselves and parties who bring their copyright claims to federal court. Simply stated, the standards of Rule 11(b) require an "inquiry reasonable under the circumstances" on the part of lawsuit participants and their attorneys with respect to how they develop their claims and present them to the court.

Claims Must Be Supportable

Especially important to note is that the failure to abide by the provisions of Rule 11(b) can lead to sanctions against an attorney or party. Among other factors, the court can look at whether an attorney or party's conduct was willful or unskilled. Court-ordered sanctions could include payment of the other party's litigation expenses as well as the other party's attorney's fees. It is no small matter, then, to see that copyright claims are based on sound footing under the federal rule requirements and existing case law.

How does one make an "inquiry reasonable under the circumstances?" When is enough due diligence enough? Clearly even a superficial understanding in this regard indicates that claims must not be brought recklessly. The rules indicate that the court will not tolerate frivolous or reckless claims and that such claims might lead to sanctions. "Gut feelings" about a claim should be supportable under the law.

All of this underscores the importance of competent legal counsel with respect to why or how specific claims may be brought. There are many working ingredients to a copyright lawsuit. An owner of a valid copyright who demonstrates unauthorized copying may establish copyright infringement through evidence of access to the copyrighted work and similarities to the copyrighted work.

One must look further and deeper, however, into the case law analyses of "access" and "similarities" to understand what these terms mean in a legal sense. The substantive issue of similarity between works of authorship, for instance, and to what level any existing similarity rises for the purpose of adequate proof of copyright infringement is something that needs to be carefully measured by a skilled reading of the applicable case law standards.

An Understanding of the Law is Essential

Ultimately, because the law is subject to interpretation, a skilled understanding of the scope and applicability of the relevant law is essential. Perhaps a certain statute of limitations applies; perhaps it does not. Perhaps certain case law applies; perhaps it no longer does. Copyright, like other areas of the law, is evolving with new media and Internet issues. The rules going into the game, nevertheless, like Rule 11(b), still apply.

A fresh set of facts might require a creative legal argument that has not been made before. An argument is not frivolous merely because it has not been made previously. The point here is that, to an extent reasonably feasible, the time to ask many questions is before, not after, a claim is filed. Claims can be simple or highly complex. Either way they must satisfy the threshold and ongoing requirements of Rule 11(b).

By Larry Berglas

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