A REPUTATION OF SUCCESS IN INTELLECTUAL PROPERTY LAW AND BUSINESS LITIGATION
The Colorado law offices of Thomas P. Howard, LLC, are run by Thomas P. Howard, Esq., a Colorado copyright attorney who has been winning or successfully settling complex Colorado copyright infringement cases on the behalf of his clients since 1996. Thomas P. Howard, LLC, litigates claims of direct copyright infringement, inducement to infringe and contributory infringement, among others, and provides copyright representation for both plaintiffs and defendants.
Denver copyright attorney Howard formed Thomas P. Howard, LLC, after practicing copyright litigation with large law firms for a number of years, and now provides that same level of service at smaller firm rates for the benefit of his clients. Thomas P. Howard, LLC, provides you with a consult, issue analysis and a detailed rate quote free of charge. Please give us a call to discuss your case at (303) 665-9845, or send an email with a detailed description of your issue. Additional areas of interest:
Several common copyright questions that we receive are:
1. What is a copyrighted work? Copyright protection exists in original works of authorship that are fixed in a tangible medium of expression from which they can be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device. For instance, an original book, movie or painting would each constitute a copyrighted work. “Works of authorship” include the following categories:
Literary works (which include computer source code)
Musical works, including any accompanying words
Dramatic works, including any accompanying music
Pantomimes and choreographic works
Pictorial, graphic and sculptural works
Motion pictures and other audiovisual works
2. Does a work need to be registered with the United States Copyright Office in order to be copyrighted? No. Copyright protection comes into being the moment that an original work of authorship becomes fixed in any tangible medium of expression. For example, when a person places an original story on a page, it constitutes a copyrighted work. That said, there are multiple reasons why federally registering a copyrighted work is in every author and publisher’s best interest.
First, pursuant to the 17 U.S.C.A. §§ 504 and 505, a registered work that is subject to copyright infringement may be the recipient of (1) statutory damages of up to $150,000 per infringement where such infringement is willful; and (2) attorney’s fees.
Second, in addition to statutory damages and attorney’s fees, registration provides public notice to all parties that the work has been copyrighted by the United States Copyright Office.
Third, should a lawsuit arise, filing a copyright registration within five years of publication provides prima facie evidence of the validity of the copyright registration certificate that you are setting forth in the copyright infringement claim, and places the burden of proof on the defendant to prove otherwise should they dispute the legitimacy of the registration.
3. Can I wait and register the work in the event that an infringement occurs? In order to retain the right to claim statutory damages and attorney’s fees for copyright infringement, registration must occur within three months after publication of the work or prior to the infringement occurring. Registering the work after the infringement happens provides only the right to actual damages and injunctive relief, unless the post-infringement registration occurs within three months after the publication of the work.
4. How similar do two works need to be to constitute copyright infringement? In order to support a viable claim for copyright infringement, two works must be “substantially similar” in the eyes of a jury. In determining whether infringement exists, juries are asked to apply a test called the “substantial similarity analysis.” One United States circuit court’s stated definition of “substantial similarity” was “whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.” Another went on to state that “the copying need not be of every detail so long as the copy is substantially similar to the copyrighted work.”
5. What constitutes a derivative work? A work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation or any other form in which a work may be recast, transformed or adapted. A work consisting of editorial revisions, annotations, elaborations or other modifications that, as a whole, represent an original work of authorship, is a “derivative work.” 17 U.S.C.A. § 101.
6. Are there defenses that a party accused of copyright infringement can raise? Yes, a defendant in a copyright infringement matter may raise numerous potential defenses in response to an allegation of infringement. The specific defenses that any particular defendant may raise will directly depend on the facts of the individual case.
Recent Copyright Infringement Matters Handled by Attorney Howard
Attorney Thomas Howard of Thomas P. Howard, LLC,has a broad and ever-increasing litigation background, dating back to 1996, in the field of copyright law. Several recent copyright cases successfully handled by attorney Thomas Howard are as follows:
Thomas Howard recently successfully defended a software manufacturer and distributor in the United States Federal Court for the District of Colorado in Huntsman v. Soderbergh, an action involving multiple claims filed by nine major studios and 15 directors pursuant to the Copyright Act and the Trademark Act. The Directors/Studios attempted to bar Mr. Howard’s client’s marketing of software that allows consumers to preprogram a DVD player to skip and/or mute specified sections of a film while it plays the work. The Directors/Studios argued that this constituted infringement. This lawsuit led to testimony before Congress and the subsequent Congressional modification of the Copyright Act and the Trademark Act through the issuance of the Family Movie Act of 2005. All claims against attorney Howard’s client were subsequently dismissed.
Thomas Howard recently filed a copyright and trademark infringement lawsuit on the behalf of a recognized seller of health care products. The case was filed to address the infringement of a copyrighted website as well as the infringement of several trademarks. The case was successfully settled shortly after the filing of the complaint.
Thomas Howard recently filed a lawsuit on the behalf of an international filmmaker, in the United States Federal Court for the District of Colorado, in a copyright infringement suit involving copyrighted works infringed through unlicensed distribution and sale over the Internet. The matter resulted in settlement subsequent to discovery.
Thomas Howard recently represented a Colorado web site owner in a copyright infringement lawsuit involving the unlicensed copying and publication of copyrighted works. The matter was successfully settled after mediation.
Thomas Howard recently represented a Colorado artist in a multiparty copyright infringement suit involving the unauthorized use, sale and distribution of his artistic works over the Internet. The matter resulted in settlement subsequent to discovery.
Thomas Howard recently represented a Colorado software developer, in the United States District Court for the District of Northern California, in a copyright infringement action. Mr. Howard filed a detailed motion for preliminary injunction which incorporated a complex comparative expert analysis of the infringing source code. The case settled three days before the hearing on the preliminary injunction.
Thomas Howard has represented the American Society of Composers, Artists and Producers (ASCAP), in the United States District Court for the District of Colorado, in multiple copyright infringement matters. Each matter has been brought to a successful settlement on behalf of this client.
Thomas Howard recently represented a large national sign company in a copyright infringement lawsuit filed in federal court pertaining to the usage of its copyrighted signage without license or permission. The case was settled pursuant to a settlement agreement under which Defendants paid copyright infringement damages for the purpose of settlement and explicitly admitted that they had unlawfully and wrongfully used, without permission or license, Plaintiff’s Copyrighted Work.