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Thomas Swartz
Thomas Swartz, Lawyer
Category: Intellectual Property Law
Satisfied Customers: 3002
Experience:  Twenty one years experience as a lawyer in New York and New Jersey. Former Appellate Law Clerk.
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Real Estate agent ordered a website and a company created it

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Real Estate agent ordered a website and a company created it for the agent. The agent has the rights, and there is a copyright symbol at the bottom. Another agent under the same broker but from another office copies the website word for word, image for image.
What rights has the person, who had it first?

The agent who has a copyright on the website obviously has the right to bring a copyright infringement lawsuit against the agent who copied the website. But before a copyright lawsuit can be commenced, the owner of the copyright must register the copyright with the U.S. Copyright Office. To do so, I recommend you read Copyright Registration of Online Works. And in a copyright infringement lawsuit, the agent can seek both damages and an injunction. Before commencing a lawsuit, one typically sends a cease and desist letter to the infringing person. So, this should be considered first.

Customer: replied 3 years ago.

If it gets to court, will the losing party have to pay the winning party attorney's fees? Does it matter when the actual financial damage is difficult or impossible to establish?

How costly may it get just to get to the judge?


Sorry I did not respond sooner. I had logged off my computer last night. The Copyright Code does allow the judge hearing the cast to award attorney's fees to the winning party (17 U.S. Code § 505).

In terms of whether it is hard to prove actual damages, the Copyright Code allows the plaintiff to choose statutory damages instead of actual damages (17 U.S. Code § 504[c]). And this amount can vary between $750 and $30,000 as the judge sees fit.

How much it costs to get to a judge is difficult to say. It would depend on the cost of your attorney, and an attorney may take the case on a contingency basis. I would begin shopping around for an intellectual property attorney in your area.

I hope this helps.

Customer: replied 3 years ago.

Last clarification if possible. You mentioned "cease and desist letter" and said that it should be considered first.

Basically, people did it intentionally, and not by mistake, so does the owner of the work has to send such letter, or it is not a requirement of the law?


The owner does not have to send such a letter. It is not a requirement. But it functions basically as a notification that you are ready to commence a lawsuit if the activity does not stop. It also allows you to request some compensation from the infringer in order to avoid a lawsuit. So, you can ask them to stop and ask for some compensation, and advise them that if they do not this you are ready to commence a lawsuit. And this is usually frightens them; no one likes the prospects of a lawsuit. And they will likely stop.

Good luck.

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