movie copyright infringement

[movieproducer]

California

I am an independent movie producer who found one person listing my DVD on several websites without being licensed to do so.

I track the person down and sent them and the websites an email stating that this person was violating my copyrights and the website owners cooperated and the listing were removed.

This person was trying to sell my DVD (new) for 4 times what my licensed sellers sell theirs, and there are no records that this person, his company or anyone at his address every purchase any copies of my DVD.

It is possible that I was able to stop any sales from occurring but I feel I should be compensated in some way for his intent to sell without being authorized to do so and he listed it on several websites. He is a middle age man who has been selling on ebay, amazon and other Internet places since 2000 and he has a catalog of over four thousand titles.

Should I pursue a lawsuit? Or should I request a $$ settlement from him to avoid a lawsuit?

 

[dee_dub]

"Intent to sell" is not actionable, as far as I know.

Are these illegally-manufactured copies of your movie? If not, he wasn't breaching your copyright. Someone who purchases a copy of a work is allowed to resell the copy.

He may have been in breach of your licensing agreement. Look to your agreement to see what your rights are.

Even if he did breach one or the other, what remedy do you hope to achieve? You won't get anything substantial unless you can show that his illegal offering damaged your sales through legitimate channels.

 

[movieproducer]

I agree that the primary measure of recovery of actual damages is based upon the extent to which the market value of the copyrighted work has been injured or destroyed by the infringement. Very often, proof of actual damages is very difficult.

Acknowledging this reality, federal copyright law allows a prevailing plaintiff to elect to recover so-called statutory damages in lieu of actual damages. Currently, statutory damages range from $500 to $20,000 per act of infringement. If the court finds that the defendant acted willfully, the court may increase the damages to a maximum of $100,000 per act of infringement. Finally, the court can also order the defendant to pay the plaintiff's attorney's fees and court costs.

In this case the defendant knowing, willfully, and premeditatedly, listed a product in several markets; that he knew he did not create, and was not licensed to sell for the intent of making money by an illegal act protected by federal law.

 

[Michael Wechsler]

dee_dub makes a good point - what exactly happened here? I'm still unsure since you wrote that the seller wasn't "licensed" to sell the DVD. What does this mean? You can cite all the remedies for copyright violations but, unless your case fits the application of these rules, you can't avail yourself of their benefits.

 

[movieproducer]

Copyright infringement occurs when a person copies someone else's copyrighted items without their permission.

As I mentioned in the original post, there are no records from any of my distributors that indicate that this person, his company or agents ever purchased any copies of my DVD, even for personal use.

So somehow he obtained a screener or a copy, of the movie in some form, from which he made his own copies of my movie, then put those copies on the Internet thru his and other people's website for sale.

And until a subpoena if sought for his company's bank statements, Internet sales and general account information I will not know how many copies were sold and how much money was made.

So again I ask the original question: Should I pursue a lawsuit or should I request a $$ settlement from him to avoid a lawsuit?

The statute of limitations is three years so I have time to continue researching this matter before I make my decision and where to submit the information I uncover to the F.B.I. for them to do their own criminal investigation.

If I was vague in the beginning it is only because I was trying to be cautious and not give out too information in case the violator in on this site.

 

[dee_dub]

You've cut and pasted text from other websites into your own inquiry about copyright infringement! The irony is delicious. I'm also tempted to say that somebody selling your product for 4x what it's listed for legitimately is actually helping your business by inflating your price.

I also doubt he's in breach of any licensing agreement since he probably never entered into any such agreement with you in the first place. I'm curious - what does your licensing agreement actually say, and who are the parties to it? But I think its a red herring in this case. You should be also aware that not being licensed by you to sell the movies does not mean he's breached your copyright.

Sounds like the only way you're going to prove copyright infringement is by getting disclosure of his records, and you'll have to sue to get that. If you're wondering whether you should sue for copyright infringement or look for settlement first, I think it's generally good form to send a demand letter. Bottom line is, at some point, he's going to have to show the court where these copies he's selling came from, and it doesn't sound like he's going to be able to do that, so you're bargaining from a position of strength.