Copyright Infringement and Trademark Violations

Copyright infringement is a federal criminal violation that can lead to a stiff jail sentence. A person violates the copyright infringement law, title 18 U.S.C. §506, if one of the following actions takes place:

• The copyright infringement was committed for financial gain or commercial advantage;
• The copyright work distributed had a value of $1,000 or more;
• The copyright work distributed over the internet was a “work being prepared for commercial distribution.”

The definition of a “work being prepared for commercial distribution” means a computer program, a musical work, or a movie that the copyright owner has not commercially distributed. It also includes copying a movie that is only showing in a movie theater and has not yet been released on DVD.

In addition to the offenses that carry criminal sanctions, there are three other prohibited offenses that carry fines: (1) fraudulent use of a copyright notice on a work knowing it is false; (2) fraudulently removing a copyright notice; and (3) making a false representation on a copyright application. If you or someone you love has been charged with copyright infringement or trademark violation, please call Miami attorney Ken Swartz to schedule an initial consultation.

Copyright infringement has become a common occurrence with the internet. It can happen by doing something as simple as obtaining a film on the internet without paying for it, or by sharing a film with others who have not paid for it on a Peer-2-Peer program.

The federal penalty carries a 5 year sentence if at least 10 copies were reproduced or distributed within 6 months or is one work with a total retail value of $2,500 or more. For a second offense, the sentence may be 10 years. Any lesser act is a misdemeanor.

The copyright laws found in Title 17 U.S.C. § §501 through 506 are intended to protect the copyright owners by giving civil remedies. The federal statutes allow the owner to impound the infringing material, recover attorney’s fees and see damages. The same federal statute give the copyright owner the right to ask a court to impound copies of any infringing work and the court may order the destruction of all copyright violations.

A person who copies a trademark or makes a counterfeit trademark is in violation of the Lanham Act, Title 15 U.S.C § 1051, et. seq. A trademark infringement happens when the copy is likely to cause confusion, or to cause mistake, or to deceive. Trafficking in goods and knowingly using a counterfeit trademark will carry a sentence of imprisonment up to 10 years. A counterfeit mark means anything used in connection with trafficking in goods, services, labels, emblems, boxes, or packaging of any kind if the use of it is likely to cause confusion, mistake or deceive. An example of the enforcement of this statute is the prosecution of persons selling fake Rolex watches bearing “Rolex” trademarks that were virtually identical to the original trademark. The fact that the fake watches are of poor quality is not a defense if the trademark is identical to the original. Other counterfeit consumer goods this statute has been against include trafficking in cigars, sneakers, handbags, and designer clothing. This federal law also subjects a person to civil liability and civil damages.

Copyright infringement and trademark infringement offenses are serious white collar crimes that require the highest quality legal representation. Ken Swartz is a Miami criminal defense lawyer with many years of experience in representing persons charged with these types of offenses. As a Florida Board certified expert in criminal trial law, he has represented hundreds of persons charged in federal crimes.