A copyright grants the original creator of a work exclusive rights to reproduce it. Copyright infringement occurs when someone uses the original work without permission.
Copyright law protects the unauthorized use or duplication of the work. The U.S. Copyright Act of 1970 protects works produced by expending significant mental activity from copyright infringement.
The copyright holder can bring a copyright lawsuit against the infringer. Infringement disputes are usually negotiated or litigated in civil court. Criminal liability can be established in case of a large-scale infringement.
What does copyright protect?
For a work to be copyrighted, it must be an original work that exists in a physical form and is a result of some creative efforts on the author’s part. Examples include photographs, writings, songs, videos, paintings, advertisements, software codes, technical drawings and business plans. The work can exist on paper or in a digital format.
What rights does the copyright holder have?
The original creator or owner of a work is granted certain exclusive rights. They can reproduce and distribute their work. They can create other works based on the existing work, known as derivative works. Copyrighted artistic and literary works can be publicly performed or displayed. They can also be publicly performed in the form of a digital musical recording.
The copyright holder can grant permission to another party to reproduce their work. The use or exploitation of their work without permission constitutes infringement. An overview of the grounds for a copyright lawsuit follows.
Elements of a copyright infringement
A copyright violation is said to have occurred if certain conditions are met:
- The copyright holder has a valid copyright
- The alleged infringer has access to the copyrighted work
- The duplication is outside the exceptions
Exception here refers to the doctrine of fair use that permits the use of copyrighted work without first seeking the owner’s permission. Whether a particular use can be deemed fair use is determined on a case-to-case basis, as explained below.
Fair use exception
The court will examine four things:
- How has the work been used: commercial or non-profit educational purposes?
- Nature of the copyrighted work
- What quantitatively and qualitatively was used? For example, fair use may be difficult to prove if a small portion of the work was used but the portion was an important part or ‘heart’ of the work.
- How the infringer’s activities may harm the current market or a potential market due to its widespread use.
A copyright law firm will be able to provide comprehensive guidance on protecting your intellectual property rights and understanding the fair use exception.
Penalties for copyright infringement
An intentional or accidental violation of copyright can result in fines or incarceration. The legal penalties of an unsuccessful copyright lawsuit are:
- Compensating for the actual damages suffered, in addition to any profits lost
- Paying an amount ranging from $200 to $150,000 for each work infringed
- Paying all attorney fees and court costs
- An injunction by the court to halt the infringing acts
- Impounding the illegal works
- Imprisonment
Outcomes will depend on the type of infringement that has occurred. That is, whether the defendant was involved in a direct infringement, or they facilitated another individual or group in exploiting a copyright.
How to avoid copyright infringement
Information access and dissemination is faster and easier than ever before. While advantageous, it has created an environment for innocent infringement. Here are some ways in which you can avoid falling foul of the U.S. Copyright Act.
Confirm before use
A work that does not include a copyright notice explicitly describing copyright ownership may still be protected by federal copyright. Unless you can correctly confirm that it isn’t copyrighted, steer clear from using it.
Be aware of infringement exceptions
As already explained, the fair use exception permits the use of copyrighted works. It applies to non-commercial use only, and must satisfy other conditions to escape a copyright infringement lawsuit. Here again, refrain from use until you can get a confirmation or inquire directly with the owner of the work.
Read the copyright and license notices
Always look for a copyright notice or licensing terms on a website, internet portal or any online or offline work or product. If you discern that the copyright owner has allowed others to copy and distribute the work, check the conditions (such as giving the owner credit) and licensing fees that apply.
Consult a copyright law firm
A law firm specializing in a wide spectrum of IP issues can provide reliable guidance and solutions on avoiding infringement or handling an infringement notice, and protecting your own IP rights. Whether you need to enforce your IP rights or send a counter-notice, proactively seeking legal advice will help you put stressful infringement matters behind you quickly.
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