The author of the work automatically receives a copyright once it is “fixed in a tangible medium”.  Registration with the Copyright Office is not required to create or maintain copyright, unless the owner institutes an infringement suit.  However, registering in advance bestows certain advantages if the work is infringed. For example, registration in advance entitles the author to pre-established damages and attorney’s fees.

An action for copyright infringement may arise where a third party violates one or more of the exclusive rights granted to copyright owners.  To establish infringement, the plaintiff must prove:  “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.”[1]Ownership of a valid copyright consists of:  “(1) originality in the author; (2) copyrightability of the subject matter; (3) a national point of attachment of the work, such as to permit a claim of copyright; (4) compliance with applicable statutory formalities; and (5) (if the plaintiff is not the author) a transfer of rights or other relationship between the author and the plaintiff so as to constitute the plaintiff as the valid copyright claimant.”[2]  A copyright registration certificate from the Copyright Office serves as prima facie evidence of elements (1) through (4).

California Civil Code Section 3294, states:“In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”

“Oppression” is defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.”

“Fraud” means “intentional misrepresentation or deceit.”

“Malice” is defined as “conduct which is intended by the defendant to cause injury to the plaintiff” or that shows a “willful and conscious disregard of the rights or safety of others.”

What are some of the common scenarios where punitive damages are awarded?In order to be successful in obtaining punitive damages, you must have sufficient evidence to show that one of the above definitions apply under a higher burden of proof (clear and convincing evidence) than a normal civil claim preponderance of the evidence). The difference means that the evidence must be in the plaintiff's favor much more strongly than the 51% standard of a  typical civil claim.  However, there are many instances where punitive damages apply to either a personal injury or an employment claim.  Some common examples include the following:

  • Car accident claims where the defendant was driving under the influence of alcohol or drugs (DUI/ DWI) at the time of the accident.
  • Intentional torts (assault, battery, sexual assault, sexual abuse, etc.)
  • Some wrongful termination claims
  • Cases of fraud
Since these claims allow you to recover additional damages above and beyond just those meant to compensate you for your losses, it is important that you consult with an attorney on these claims as soon as possible following the incident giving rise to the claim to ensure that the evidence needed to prove your claim is properly secured, gathered, and presented at trial.

Every state has its own time limits in which you are able to take legal action to redress a wrong. These time limits are called statutes of limitations, and they vary according to the type of claim you wish to pursue. The law is inflexible,  and these time limits are generally inflexible, meaning if you do not file a lawsuit with the specified time you will be unable to recover for your injuries or damages.  

Below you’ll find California’s statutes of limitations for many common types of lawsuits. You should consult with an attorney to fully evaluate your potential claim, and determine which limitations period applies.

  • Medical malpractice actions: Three years from the date of injury or one year from the date of discovery of the injury, whichever occurs first. (There are exceptions for minors.)
  • Breach of an oral contract: Two years.
  • Breach of a written contract: Four years.
  • Personal injury claims (for example: dog bites, auto collisions, slip and falls, premises liability, motorcycle accident, wrongful death, etc.)  : Two years.
  • Employment Discrimination, Harassment or Retaliation:  Under California’s Fair Employment and Housing Act (age, race, sex, disability, national origin, etc.) – Claims must be initially filed with the Department of Fair Employment and Housing within one year of the discrimination/harassment/retaliation.  Once the DFEH issues a Right to Sue Notice, the claimant has one year to file a case in court. However, under federal rules, specifically under Title VII, ADEA and ADA, claims in California must be initially filed with the Equal Employment Opportunity Commission within three hundred days.  Once the EEOC issues a Right to Sue Notice, the claimant has ninety days to file a case in federal court.
Whether you have been in a vehicle collision, or have been injured as the result of another accident, there are a few things you should do to ensure that your rights are protected:

- File an accident report.   Regardless of the circumstances that lead to your injury, you need to file a report.  If you were in a vehicle collision, you should insist that a report is filed with law enforcement to ensure the facts are accurately preserve.  If you are injured on the premises of a business, you should file a report with the manager or owner.  Attempt to get a copy of the report, or the information that will allow you to get a copy of the report once it is completed.

- Obtain Information:  Information that you should collect includes the name, address, and phone number of any witnesses, or people involved in the accident. If possible, and practical, obtain photographs of the vehicles, and/or the area where the accident occurred, and any visible injuries.  (Avoid taking photographs if it will place you or others in jeopardy.)  Get insurance information where appropriate.  In California, drivers are obligated to carry insurance, and provide that information when involved in a collision.

- GET HELP:   There are two types of help you will need after an accident medical, and legal.

  • Medical Care:  The timing and nature of the medical treatment that you obtain following a collision or other accident is often overlooked.  When you are injured, you should seek medical attention as soon as possible.  Tell the physician what happened, and be honest about every injury or complaint regardless of how minor it seems at the time.  Do not exaggerate your complaints, but also do not ignore or minimize them.
  • Legal Assistance:  Obtain legal advice as soon as possible.  DO NOT give any information about the accident to an insurance adjuster, or make any recorded statements without consulting with an attorney first.  Also, do not sign any document without consulting with an attorney.  Both of these are common mistakes most people make following an accident that jeopardize their rights and any recovery they may be entitled to.