There are few absolutes or bright lines when it comes to copyright matters. So much is left to the judgment of the court or jury in a copyright infringement case, the boundaries so amorphous, the tests so subjective, that ensuring that you are more sympathetic than the plaintiff can go a long way toward moving the case one way or another.

The threshold question of the copyrightability of plaintiff’s work, the credibility assigned to any given copyright registration, the application of the four-factor test for fair use, the connection between profits and infringing conduct (and the proper allocation of same), the amount of statutory damages within the statutory range, the award of attorneys fees (and how much of them, if any) to a successful plaintiff, and (going the other way) the potential for an award of fees to a successful defendant if the claims prove to have been objectively unreasonable – none of these questions lend themselves to objective measure and confidence. And opposing counsel know this. Put yourself in a favorable light vis a vis the plaintiff and you make your case that much easier to settle.

Steve Gillen teaches Electronic Media Law at the University of Cincinnati College Conservatory of Music. Steve worked for nearly 20 years in publishing prior to entering private practice in the middle 1990’s. He is presently a partner at Wood, Herron & Evans (a 145-year-old Cincinnati law firm focused on intellectual property) where he concentrates his practice on publishing, media, and copyright matters. Steve is a long-time member of the TAA Council and a regular speaker at TAA conferences.

Read Gillen’s article When getting rights clearance is tough