The Trouble With International Copyright Infringement

You know how every couple of years movie studios will release two movies at the same time with similar premises (Tombstone and Wyatt Earp, Armageddon and Deep Impact, and this year's coup d'grace, Hercules and The Legend of Hercules)?* I recently experienced this very phenomenon in my law practice. Last week, two unrelated individuals came to me with the exact same issue: someone overseas was taking credit for their work and they wanted to know how they could stop it. I gave them several options:

• They could send a cease and desist letter directly to the infringer.
• They could send a DMCA takedown notice to the infringer's ISP and have the infringed work removed from the web, as this artist recently did.
• They could try to negotiate a licensing fee with the infringer and work out an agreement for the infringer to keep using the work while paying a fee to the artist (it's been my experience that most infringers don't realize they're infringing or don't realize there's anything wrong with it. Very rarely have I encountered someone who does it maliciously).
• They could sue (which, for reasons I mention below, can be problematic).

None of these options were well received and I don't blame them. The truth is, fighting back against copyright infringement is hard enough to do domestically. It's costly, time-consuming, and requires specific rules to be followed (i.e. registration of the work, filing in federal court, etc). When you add in the international aspect of the infringement, things get much tougher; unless you're super rich, it may not make sense to fight it.

Unlike domestic copyright law, international copyright law doesn’t really exist as a single monolithic area of practice. The U.S. Copyright Office even has a page explicitly telling you that “[t]here is no such thing as an 'international copyright.’" That's because copyright laws are determined by each individual country, meaning that copyrights created in one country will probably not enjoy the same rights and protections in others. That's how a work of art can be in the public domain in France, for example, but still be protected under copyright law in the U.S.

In order to normalize copyright protections across international borders, two international treaties were enacted, both of which the U.S. signed onto: The Berne Convention and the Universal Copyright Convention (UCC). Very generally, these two treaties are designed to allow artists the same level of protection regardless of which country the work originates from or which country the infringement takes place. The Berne Convention in particular allows artists to use the copyright laws of whichever country the infringement took place in, even if the work originated somewhere else. So if your work originated in Germany but was infringed in Lebanon, Lebanon would be required to treat your art under its copyright laws the same way it would treat art of Lebanese origins.

There are two hiccups with these treaties, however. First, they only apply to signatory countries. So if your work is infringed in Iran or Somalia, neither of which are signatories to the Berne Convention or the UCC, you're pretty much screwed. Second, even if your work is infringed in a member country, you're stuck filing your lawsuit in the U.S. unless you're rich and can afford to defend the copyright overseas, you have to file your claim in a U.S. court, and that means the infringing party probably won't fly to the U.S. to answer the lawsuit. The good news in that scenario is that you'll win a default judgment. The bad news is, so what? The infringer is still at large and is essentially under no obligation to stop infringing your work.

This is a tough area of law and I'm the first to admit that I don't know it well. If there are any attorneys out there who specialize in defending copyrights from international infringement and want to enlighten me, I'm happy to listen and learn.

* Wikipedia refers to this phenomenon as "Twin Films," but we can do better. I suggest "The Cinema Duplication Effect."