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Copyrights sometimes disappear when challenged

Laws governing copyright are complex and evolving fast. If someone accuses you of committing copyright infringement, they might be entirely wrong and have no case against you. But then, they might be right. Inadvertently violating copyrights is extremely common, especially in the digital era.

Losing a copyright battle can be expensive and damaging to your reputation and future. Talk to an experienced intellectual property attorney if you think you’re headed for a copyright fight.

It might not be original enough for copyright

Fundamental to the idea of copyright is that the copyrighted work must be original in some way. Early last year, a songwriter lost a suit against Taylor Swift for using phrases like “shake it off,” “players gonna play” and “haters gonna hate.” The judge found the “banal” phrases “too brief, unoriginal and uncreative” for protection and dismissed the challenge.

More classic examples of works that are simply too unoriginal to be copyrightable are forms, phone books and spreadsheets.

It may have passed into public domain

Copyrights don’t last forever, but instead lapse and enter the “public domain,” typically after many decades. Your dispute is probably about a more recent work. Still, works can go into the public domain sooner, sometimes without the creator realizing it.

The song “Take Me Out to the Ball Game” is public domain because it’s extremely old, but the 1968 horror classic Night of the Living Dead supposedly has been in the public domain for many years because of laws in effect in 1968 and errors made behind the scenes. Errors in establishing secure copyrights from the start often make works hard or impossible to defend later on. Seek legal advice, especially if you create regularly and/or for a living.

The creator may have been thinking about it too long

There’s a time limit for action much shorter than lapsing into the public domain. A person must file suit for copyright infringement within three years of the time the “claim accrued.”

Different federal courts have interpreted what “accrued” means in different ways. Some rule the suit must come within three years of the time the infringement was, or reasonably should have been, discovered. Others rule the three years start with the infringing act itself, no matter if anyone noticed it. If they’ve been stewing over your infringement for a decade, they may have waited too long.

Note that, no matter which federal court is hearing the case, these rulings usually don’t apply to ongoing infringement, such as using the same theme song in every episode of a podcast.

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