Someone wrote me the other day asking how he could defend himself from a claim of copyright infringement even though he hadn't registered his own work with the U.S. Copyright Office. Sound like tough sledding? Read on for my response.
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It seems as if even attorneys can get this answer wrong if they don't read the question carefully. I understand that one entertainment lawyer advised that you'll need to show the claimant in this case had prior access to your work. That would be true if YOU were suing HIM for copyright infringement, but that's not the case. Just the opposite. In suing you, the claimant had prior exposure to your work, most likely because you had already published or otherwise made it available publicly. Now, he will have to prove that HIS version of a primarily identical work predated yours. You, of course, need to show that it didn't.
Your job, then, becomes primarily defensive. You'll need to round up all your evidence, including dated copies of your rough drafts and finalized version. Microsoft and other software manufacturers time-stamp your dated material every time you open a document and save changes, from your earliest saved version on up to the latest one.
Also, you'll have to gather together any correspondence referencing your work on the property, either physically or digitally through e-mail, messaging, texting, phone conversations, etc. Sworn statements from people who knew you were working on your property and when will also prove invaluable. So, too, will any inquiries regarding reference and research work you did and the people you contacted—like a query to a photo agency or a historical library. Ditto, friends, neighbors, drinking buddies, teachers, coworkers, and family members with whom you may have discussed various aspects of your work during its development. And don't forget any social-media postings or discussions of your work, which will also be dated. And, of course, interviewees whom you may have spoken to in preparing your material.
You'll also want to rummage through old receipts for printing paper, ink cartridges, reference books, and anything else you may have bought that might support the notion that you were working on developing your property as of those purchase dates.
Once you do that, the claimant will need to prove that his version of your creative property predated all of your evidence which, of course (unless the claimant is correct), will be impossible. Allegations can be manufactured at the drop of a hat; proof can't be.
It's a lot of work on your part, but it would be just as much if you had registered your copyright with the U.S. Copyright Office. If someone comes along and says you stole his work, it's still up to you to prove otherwise through a preponderance of evidence, even with a registered copyright backing you up. You know, guilty until proven innocent?
The main advantage I see in registering your work with the Feds is that, if you do prove someone violated your copyright, you can go after him for damages, including punitive fees and legal expenses. Otherwise, you can only force the charges against you to be dropped without any hope of a financial settlement.
Not fun in either case, granted. But defending oneself against false claims never is. It's merely part of living life in the fast lane, I guess.
D. J. Herda is author of the new eBook series of writing advice, About Writing Right, available at Amazon and at fine booksellers everywhere.