Tana Mongeau Fans SUING Over TanaCon Failure
How to Sue Someone Who Failed to Credit Your Work
In some situations, you can sue if a person takes credit for your work. For example, someone cannot directly copy portions of your work and pass it off as their own. Someone commits copyright infringement if they lifted an article you wrote, word for word, and posted it under their byline or if they sampled a long section of music you wrote or performed. However, you can’t sue because someone summarized or paraphrased your ideas but refused to give you credit. This might be “plagiarism” in an academic context, but you can’t sue for every kind of plagiarism in the United States.Before taking legal action, you should ask the person stealing your work to give you credit or to remove the work from the Internet.
Send a letter or email.You should notify a person that they are infringing your work. Sometimes, people accidentally copy something that you have written. They might not even be aware that you are the author. You can send a letter asking for your material to be removed or asking for compensation.
- Keep your tone neutral. Don’t let your anger show. You are more likely to get a person to agree with your request if you stay professional.
- For example, you could write, “I saw on your website that my copyrighted article [insert article name] appeared unattributed and without my permission. I don’t recall that you ever contacted me for my permission before publishing the article. Please contact me immediately at [insert contact] so that we can come to an agreement for compensation or for the article’s removal from your site.”
Negotiate payment.If the person responds to your letter, you should ask them to pay you your regular fee and also ask for credit. If the person ignores you, or if they refuse to pay you anything, then you can consider next steps.
- If your material appears on a website, then you should send the website owner a “takedown” notice.
- However, if the material does not appear on a website, then you should consider gathering evidence for a lawsuit.
Draft a takedown notice if the work is online.You can get infringing work removed from the Internet by sending a “takedown” notice to either the website or the Internet Service Provider (ISP) that hosts the website. The notice must contain the following information:
- You need to identify your work that is being infringed. If multiple works are being copied, then provide a representative list.
- You need to identify where on the website your copyrighted work appears. If a link is involved, then include the link.
- You should provide your name and contact information in case the person has questions.
- You should also state that the information in your notice is accurate and that you “have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.”
- You should also state that “under penalty of perjury” you are authorized to send the notice by the copyright holder.
- Include your signature.
- You can also find the agent by using the Agent Directory at the U.S. Copyright Office.
- You can also send the notice to the Internet Service Provider. The ISP is the company that hosts the website. You can find the ISP by visiting www.whois.net and entering the URL for the website where your work illegally appears.Once you have the ISP’s name, you can then search for its agent in the Agent Directory at the U.S. Copyright Office.
Check if your material is removed.After receiving a takedown notice, the website or ISP should promptly remove the material. They should also disable the account of anyone who has a history of posting stolen material. If they don’t, then you can bring a lawsuit.
Gathering Evidence of the Infringement
Get proof of your copyright.Your certificate of copyright registration will serve as proof that you have a valid copyright. However, if you have never registered your copyright, then you should do so immediately. You must have registered your copyright before you can sue in court.
Identify infringement.Not every failure to credit your work constitutes “infringement.” You should look for direct copying—someone who lifts entire sentences, visual works, or music directly from you. It is the copying that is illegal, even if they do give you credit for the work.
- You cannot copyright ideas.Accordingly, you cannot sue someone who summarized your ideas but didn’t give you credit. You should contact the person and ask that they give you credit. However, you can’t sue.
- You probably can’t sue if the copying is minimal. This is a judgment call. Some copying is so minimal that it is not infringement.
- A person doesn’t infringe on your copyright if they use your work but transforms it. For example, someone might take a portion of your picture and include it in a collage containing many other images. Or someone could sample a few seconds of your song and include it in a longer audio work.
Collect evidence of the infringement.You should hold onto any material someone has published that includes your stolen work. For example, hang onto newspapers, magazines, or newsletters that contain your copyrighted work.
- If your work appears online, then print off the screens. Keep track of the dates on which your copyrighted work appears online.
Gather financial records.The primary purpose of suing is to receive financial compensation. Accordingly, you will need to show the court how much money you lost because of the illegal copying of your work. For example, you should gather financial records for the months before and after the infringement, as well as for the months when your stolen work was infringed. If you can show a drop-off in income during the infringement period, then you can recover that amount of money. These are called “actual damages.”
- If you registered your copyright, then you could get “statutory damages” instead of actual damages. The federal copyright law allows you to get between 0 and ,000 for each infringement. If the infringement was “willful,” then you could get up to 0,000 per infringement.
Filing a Lawsuit
Analyze whether to sue.Lawsuits are long and expensive. You should never bring a lawsuit without giving it considerable thought. Before filing suit, consider the following factors:
- Do you have a strong case? You need to have an actual infringement claim to sue for copyright infringement. There is no cause of action in the United States for someone failing to credit you with ideas or discoveries.
- Can you afford to sue? You will need to pay court costs. For example, simply filing a lawsuit in federal court costs several hundred dollars. You will also need to pay other filing fees as well as fees to have documents served and to have court reporters attend your hearings. At other times, you might need a lawyer’s help, which will also cost you money. In fact, you might be so overwhelmed that you need to hire a lawyer to handle the whole case.
- Do you have the time? If you don’t have a lawyer, then you will need to do all of the work on your own. This means you will need to learn the Rules of Civil Procedure as well as do legal research. You will have to attend many court hearings during the workweek, which means you will have to take time off from work. If you miss too many of these hearings, your case could be dismissed.
- Does the defendant have any money? Although you can win a lawsuit, you still need to collect any judgment you were awarded. A person who has no money probably cannot pay you. In this situation, you might not want to sue.
- Do you know the defendant? Someone might have stolen your ideas at work and not credited you with them. No matter how upsetting this might be, you probably shouldn’t sue if you intend to work at the company.
Draft a complaint.If you choose to go ahead with your lawsuit, then you will need to draft a “complaint.” This document starts the lawsuit. In it, you identify yourself (the “plaintiff”) and the person you are suing (the “defendant”). You also explain the circumstances surrounding the lawsuit and make a demand for money.
- Your lawyer can draft the complaint for you. Ask to see a copy and read it before the lawyer files. You might want to make corrections.
- If you are representing yourself, then you can get a printed “fill in the blank” complaint form from your court clerk or from the U.S. Courts website.You will need to answer all of the questions on the form and provide requested information.
- Also check if your court publishes a manual or handout for people representing themselves. Some courts publish these, which contain helpful information.
File the complaint.Once you have finished the complaint, you should make several copies. Take the original and the copies to the court clerk and ask to file the original.
- You will have to pay a filing fee. The fee in federal court is 0.
Send notice to the defendant.You have to notify the defendant that you are suing him or her, and you can do this by sending a copy of your complaint and a “summons.” You can get the summons from the court clerk. It will tell the defendant how much time he or she has to respond to the lawsuit.
- You can serve notice by having someone 18 or older make hand delivery on the defendant. This person cannot be a party to the lawsuit.
- The person might live far away from you. In this situation, you can hire a private process server to make hand delivery.
File your proof of service.Whoever makes service will need to fill out the proof of service form which you will get with the summons. The person will sign and return the proof of service (also called “affidavit of service”) to you.
- File the document with the court and keep a copy for your records.
Read the defendant’s answer.The defendant will respond to your lawsuit by filing an “answer” with the court. In this document, the defendant will respond to each allegation that you made in the complaint, either by admitting or denying each allegation.
- A copy of the answer should be delivered to you. Read it carefully.
- In the answer, the defendant might also claim that you didn’t file the lawsuit soon enough. You generally have three years to file a lawsuit for copyright infringement.
Preparing for Trial
Participate in discovery.After the defendant answers, the lawsuit enters a fact-finding phase called “discovery.” The purpose of discovery is to allow each side to uncover helpful information so that there are no surprises at trial.The judge will set a discovery schedule, which you must follow. Discovery can take up to a year, depending on the complexity of your lawsuit.
- You can get copies of any relevant document from the defendant. For example, you might request copies of your copyrighted work that the defendant has in his or her possession. This would show that the defendant had access to your work.
- You can also have the defendant answer questions. You can serve written questions in the form of “interrogatories.” You can also ask the defendant to answer questions face-to-face in a “deposition.” In the deposition, you will want the defendant to admit that they had access to your work.
Think about settling the dispute.You can settle the lawsuit at any time. Negotiating a settlement will allow you to avoid the expense and time drain of a trial. If you want to settle, then talk about the advantages and disadvantages with your lawyer. You will probably not be able to get as much money as you want if you settle. However, you can take comfort knowing that the suit has come to an end.
- If you settle, then you will need to sign a settlement agreement, which is a contract between you and the defendant. As part of your agreement, you agree to withdraw your lawsuit and the defendant probably agrees to pay you some money.
- You could also participate in mediation. Mediation is a good option for people without lawyers. In mediation, you and the defendant meet with a third party neutral called the “mediator” The mediator isn’t a judge. Instead, he or she helps guide the discussion and proposes solutions that work for both parties.
- Mediators typically cost -400 an hour, which you can split with the defendant.You can find a mediator by contacting your courthouse or local bar association.
Organize your evidence.As your trial date approaches, you need to get organized. The judge will give you deadlines for giving the defendant information about what you will present at trial. You should do the following:
- Compile a list of witnesses. You might not have many witnesses. However, someone could testify if they saw your work online and contacted you. Remember that your witnesses must testify to information they have personal knowledge of. They can’t testify to gossip or second-hand information.You will have to compile a list of witnesses and turn the list over to the defendant.
- Make exhibits. Identify documents you want to use at trial and turn them into exhibits. You can make an exhibit by attaching an exhibit sticker in the corner of a document. If you are using a photograph, then attach the exhibit sticker on the back. You can get exhibit stickers from an office supply store.
- Create copies of exhibits. The judge will also tell you how many copies you need to make of each exhibit. Typically, the defendant and the judge both get copies.
Go to trial.If you can’t reach a settlement with the defendant, then you will have to go to trial. Your lawyer can handle everything at trial. If you are representing yourself, then you should try to sit in on a trial in federal court and take notes. The following are the basic stages of a trial:
- Select a jury.If either you or the defendant opted for a jury, then you will select one before the trial begins.
- Opening statements.Both you and the defendant give the jury a sneak peek at what your evidence will be. Think of the opening statement as a roadmap to your case.
- Present your case.You can have your witnesses testify. You can also testify on your own behalf. The defendant’s lawyer gets to cross-examine all witnesses.
- Cross-examine the defense witnesses.After you present witnesses, the defendant gets to go next. You can ask the defendant questions on cross-examination.
- Closing arguments.You summarize the evidence and convince the jury to decide in your favor. As the plaintiff, you have the burden of proof. You must convince the jury that it is more likely than not that the defendant infringed your copyright.
- Jury verdict.The jury must be unanimous in your favor.
- You should think strongly about hiring a lawyer. Although costs may be a concern, you should talk with an attorney about how much it would cost. If you have registered your copyright, then you are eligible for attorneys’ fees if you win.A lawsuit in federal court is sufficiently complicated that you will want a lawyer's assistance.
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