Recently, there has been much confusion as to what rights architects, engineers, and other professionals have in the original works they create, and remedies available to them if those works are illegally taken. Essentially, architectural and engineering drawings, photographs, and other original works, even though used for business purposes, are copyrightable. Specifically, the U.S. Copyright Act provides certain distinct rights that a creator of works has. These rights include (1) the right to reproduce the works; (2) the right to create derivative works; (3) the right to distribute those works; (4) in the case of literary, music, or dramatic works, the right to perform those works; (5) the right of public displaying; and (6) the right of digital transmission. These are statutory exclusive rights vested in Section 106 of the Copyright Act.In the event works are illegally taken or infringed upon, the Copyright Act also specifies the remedies available to the author of such original works. One of the initial analyses done is to determine when the work was published or first published, and when the copyright was filed for registration. The Copyright Act allows the Court to impose statutory damages for copyright infringement if the statutory damages and attorney’s fees for copyright infringement if the infringement occurred after the registration or, the infringement occurred before registration but the registration was filed within three months of the first publication. This requirement provides an incentive for a creator of original works to obtain a registered copyright as soon as possible. Regardless of whether the copyright is registered, the author of the original works does have a copyright in what he or she has created. The question is what legal remedies are available at the time the registration is filed. The registration must also be filed as prerequisite to federal litigation for copyright infringement.
Regardless of whether the author of the original works is entitled to statutory damages or attorney’s fees, all cases of copyright infringement involve a claim for lost profits in the form of actual damages, any additional profits of the infringer, and injunctive relief, (which prevents further infringement of the copyrighted works). However in many cases, the owner of copyrights cannot prove what their lost profits were because the infringer has naturally and necessarily taken market share away from the copyright owner. As such, the copyright law allows a copyright owner to establish the infringer’s profits by presenting proof only of the infringer’s gross revenue, and claiming such gross revenues are a proper measure of profits. In other words, an examination of an infringer’s tax return and the gross revenues received is sufficient to prove damages in a copyright case. In no situations, the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted works. See Section 504 of the Copyright Act. Essentially, the recovery of the infringer’s profits is a form of disgorgement remedies allowed by the Federal Copyright Statute.
Two things are important when considering a copyright lawsuit. First, it is imperative that the creator of an original work must timely file for copyright registration. This allows the copyright owner to seek statutory damages and attorney's fees. This is important if the copyright owner cannot prove damages for such infringement. However, even if proof of damages are problematic, the copyright owner may seek disgorgement, which is permitted upon showing that an infringer has presented the same or substantially the same product as his, her, or its own.
Charles M. R. Vethan
Managing Partner
