The millions of apps flooding the marketplace make it impossible for every product to be completely unique. However, copyright law is very much alive in the world of mobile games and apps. Developers need to keep a keen eye on the market and strive to create programs that are original and clearly differentiated from others in the market. Unfortunately, even the most diligent developers can find themselves facing a cease and desist letter. If you're accused of copyright infringement, there are several things you should know.
What is a Copyright?
A copyright is a type of protection that applies to original works such as movies, sound recordings, literary works, and software. While a copyright may cover material forms of expression, it does not cover ideas, facts, or concepts that exist within the copyrighted works. You do not have to register a work for it to have copyright protection. As soon as it is fixed in a tangible medium, it receives copyright protection.
Benefits of Registering a Copyright
Taking the extra step to register a copyright for your work affords additional protections, making this a worthwhile step for professionals who have important assets to protect. Copyright registration allows you to pursue legal action against anyone who infringes on your copyright. In a copyright infringement lawsuit, you can recover statutory damages, attorney fees, and court costs if you have a registered copyright. If your copyright is not registered, you can only seek actual damages, which are often minimal.
Copyright Infringement in Apps and Mobile Games
With 1.5 million apps available on the Apple App Store alone, there are bound to be instances of similar content. Determining copyright infringement in the mobile app and gaming market is notoriously difficult. Developers can typically protect themselves by striving for originality and steering clear of products that openly mimic others in their market.
If you have an app that allows users to submit content or exchange information, it's important to keep an eye out for copyright infringement within the content that users post and share. You must make it clear that users cannot post copyrighted content and may only share original works.
In regards to your own app design, strive to maintain a high level of integrity. Never mimic another application, even if it's wildly successful in your market. Changing the name of an application isn't sufficient to avoid copyright infringement. A product's name and logo are protected under trademark law. As copyrights apply to the work itself, you will need to examine the originality of the program to determine whether you're infringing on another's copyright.
Examining a Cease and Desist Letter
A cease and desist letter alleging copyright infringement carries the threat of legal ramification, but it is not itself legally binding. The cease and desist letter presents the opinion of one attorney and his client in the matter of copyright infringement. It's important to keep your cool when you receive such a notice and take time to examine the letter carefully.
It's tempting to immediately reach out to the originator of the cease and desist when you receive this letter, but you shouldn't make contact with anyone until you've had time to carefully examine the case. Review both your own content and the work of the party whose copyright you have allegedly infringed on. Are the two pieces significantly similar? Are you familiar with the other person's works? In addition to proving that the works are similar, the plaintiff must also prove that you had access to his works.
There are several defenses available to you even if your application is definitely similar to another's works. You may be able to argue that you developed your product independently, that the other's work is fair use, or that the original piece is not original enough to qualify for a copyright, among other things.
Securing Legal Assistance
If you're dealing with a cease and desist letter of any kind, the best course of action is to reach out to an attorney who specializes in copyright law. If the cease and desist applies to an app or mobile game, look for an attorney who is well-versed in the intricacies of app law. In the highly saturated mobile market, it's inevitable that some overlap will occur. An experienced copyright attorney can help you determine whether you have a defense against the cease and desist letter.
If you cannot mount a successful defense, a copyright attorney can help you understand the next steps. The sooner you remove the copyrighted works from the marketplace, the smaller your damages will be. Settling is usually preferable in these cases to minimize publicity and expenses, but your attorney can help you choose the best course of action.
Copyright infringement is a serious accusation, but something that most companies can protect themselves from if they're careful to create original applications. Register your own copyrights as well for added protection in these types of cases.
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