Filing a Copyright Lawsuit: A Guide for Content Creators

So let’s say you did not employ a DMCA takedown service and someone is posting and profiting from your content. Obviously that is not okay and needs to be stopped because that is your revenue. So, let’s say we want to skip using and issuing a DMCA and instead we want to file a copyright lawsuit. Let’s just look at why that might be a bit harder than it seems.

Filing a Copyright Lawsuit

Check for the statute of limitation

To start you need to know whether or not the infringement was within the statutes of limitations. In most cases that limit is three years from when you first saw the infringed upon content reposted. But, let’s say someone is scraping your site and reposting your work regularly. That 3 year limit starts right back over every time they redistribute another piece of your work. So if the first redistributed piece of content went up three years ago, but they have posted regularly and do so again today. Those three years of limitations start today until the next time it happens and the time span starts over.

Decide where to file

So long as you are within the statute of limitations you can then proceed in the process of a suit. The next step is to decide whether or not you need to be filing with the Copyright Claims Board. The purpose of this board is to help truncated the process and make it less insanely expensive. Because a full case can get into the hundreds of thousands.

According to a 2017 AIPLA report

the average cost of litigating a copyright infringement case in federal court from pre-trial through the appeals process is $278,000.

Okay that’s just not attainable for most creators so we do have another option. We can go through the Copyright Claims Board. They also have limitations on what cases they will take on and what judgments they can give. The limitations are:

maximum statutory damages are $15,000 per work and $30,000 per claim. The Claims Board doesn’t issue injunctions but will order a defendant to cease infringement if both parties agree.

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So, as long as your damages fall within those limitations, that would likely be the best course of action.

Register your copyright

The next thing that must be done before your claim can be filed is you must register your copyright with the copyright office. As we know the second your content comes into inception, it is automatically legally protected. However, to file a federal lawsuit, which is what is required, it must be registered. This process can take up to 8 months. And it must be registered before it can go to court.

Document Everything

Then you have to document everything. Every little thing that has to do with proving this is your work, proving you did not give any permission or rights for this to be shared by others, and document every single instance of infringement along with the dates. Then you need to prove that the infringer has access to your works to then steal and redistribute it. An example of this could be proving that you have posted this work in a space others can access and scrape from. Another thing that needs documented is proof of any loss of revenue that you incurred. This is all evidence that will be needed in a trial.

Obtain legal representation

Then it’s time to lawyer up with a copyright lawyer. They can apparently be very expensive so be forewarned. Discuss with them if your work falls under a copyright exemption rule such as fair use. If the work is content such as ours is, you likely will not have to worry about this.

Support your copyright lawsuit case in trial

Now it’s time for your lawyer to file a complaint in the federal district court. Assuming the lawyer drafts and files it correctly it then needs to be served to the defendant through a process server that you will need to pay for.

To try and cut costs and the length of time to process all of this, it is suggested to attempt to use a mediator or even offer a settlement.

Trial

If that does not work, you finally go to trial. That’s where things can drag on and costs can rack up very fast. Once you are in trial it is up to you and your legal team to prove your case.

Prevention and Mitigating Risks

Before all of that, you can consider attempting a cease and desist letter and please, please consider always having a DMCA takedown service behind you to prevent this ever happening.

Protect Yourself With a DMCA Service

There are many DMCA services but I see two main ones used by adult content creators:

• Rulta – plans start at $109 per month (as of 2024)
• BranditScan – plan is $45 per month (as of 2024)

When building your menu and content price points, keep these costs in mind and set your prices accordingly.

I am not a lawyer nor do I have extensive legal background. I would be a terrible lawyer. If you need legal advice, contact a lawyer.

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