Legal Question in Intellectual Property in California
In 2007 I completed a book which I sell on my website. I was notified by one of my customers that another seller in my market has made a word-for-word copy of my book and has been re-selling it under his brand at over eight times my asking price for a little over a year.
Unfortunately I did not register the work with the US Copyright office.
I have read that it is possible to bring a criminal case for infringement so long as the infringement was done willingly and with the intent to profit. This is quite obviously the case. I have also read that the work must be registered in order for this to be applicable.
My question is this: Since it was not registered prior to the infringement, and since it was not registered within three months of the work being published, could I still register it at this point and be able to bring criminal charges against him? It doesn't look like a civil case will be worth the expenditure to me, but if I can ensure that he cannot continue infringing me and ensure that he can't do anything to my business in retribution via the internet, then I would jump at the opportunity to file criminally.
Thanks for your time.
2 Answers from Attorneys
Criminal prosecution in a case like this is unlikely. The criminal components of the copyright law are really aimed at the large-scale pirates.
A civil lawsuit may not be necessary. You'd do well to hire a lawyer to prepare a strongly worded Cease and Desist / Demand letter in which you demand an accounting of the infringer's sales, from which you can calculate an appropriate fee to be charged as a settlement. Only if the infringer scoffs at this would a lawsuit be necessary... and if it's a verbatim copy... it's a relatively easy case to prove.
Some attorneys will "unbundle" their services, writing the letter for a fixed fee, preparing a complaint for another, motion for a preliminary injunction for yet another...etc., without taking on the duty of representing you through the whole case. You can then pay only for the steps you're willing to take.
You're correct that statutory damages and attorney's fees are not available due to your failure to timely register the copyright, but you should STILL register your copyright now... It'll be necessary if you do file a lawsuit, and the cost is not too significant.
I agree with Mr. Firemark. An individual cannot bring a criminal action; that is the function of a prosecutor. Also, common-law copyright that afforded an author limited protection under state law was substantially abrogated by amendment to the Copyright Act in 1976, and works stored in a computer or on the Web are among those where the Act pre-empts common-law copyright. You can learn a lot about common-law (unregistered) copyright through Google, but unfortunately you're going to need to register your book in order to enforce your rights in a court.
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