Ongoing Copyright Infringement
Posted on | February 14, 2006 | No Comments
It happened again last week. I received a call from a Web designer (let’s call her “Jill”) who said her work had been ripped off. Jill had created a Web site (call it “site 1”) for an organization. This organization then needed another site with similar functionality, but instead of hiring Jill to do the second site (“site 2”), another person (let’s call him “Ted”) volunteered to build site 2.
Turns out Ted just copied Jill’s images and code (not even changing the file names) to make site 2.
Then I asked Jill the big question, “have you registered the copyright for the image and the code?” “No,” she answered in a dejected tone. I told her it was time to get that done and that she’s actually still in pretty good shape.
Now, many of you might be wondering why I would say that – especially if you’ve read my earlier post “$30 Insurance Policy.” One would think that since site 2 (the infringement) was posted before she registered her work, she not be eligible for statutory damages and attorney fees and be limited only to actual damages. In this case actual damages would probably have been a maximum of the fee Jill charged to create the first site – under $5,000.00.
The kicker is that an infringement occurs EVERY TIME someone loads site 2 into the RAM of their computer. Simply viewing the infringing site creates a copy and thus counts as an infringement.
The ACTION PLAN:
I told Jill to register her image and the code for the site right away. A copyright registration is valid from the day it’s received at the copyright office (assuming it’s a valid registration – but that’s another issue…). Any infringement that happens after the date of registration is eligible for an award of statutory damages and attorney fees.
As long as Site 2 (the infringing site) is live after the date of registration, thus infringing Jill’s registered copyright, she has the pieces in place to file a copyright infringement suit in Federal Court and if she wins (which is very likely in this case), she could be award enough money to make the whole process worth her while. Of course, the odds are that the organization, which is liable with the actual designer, and Ted would both remove the infringing site and pay Jill a reasonable sum before this ever hit a court room.
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