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What is Copyright Infringement?

At times copyright infringement is referred to as piracy. This is the use of works protected by copyright without permission for a usage where such permission is required. Using works protected by copyright infringes certain exclusive rights granted to the copyright holder. These rights include reproducing, distributing, displaying, or performing the protected work or making derivative works. Copyright holders are typically the creator of the work, publisher, or other business to whom copyright has been assigned.

Creative Work defined:

A creative work is a manifestation of creative effort, including fine artwork (sculptures, paintings, drawings, sketching, performance art (dance, writing, literature), filmmaking, and composition.

Derivative Work defined:

A derivative work is an expressive creation that includes major copyrightable elements of an original, previously created first work (the underlying work). The derivative work becomes a separate work independent in form from the first. The work’s transformation, modification, or adaptation must be substantial and bear its author’s personality sufficiently to be original and thus protected by copyright. Translations, cinematic adaptations, and musical arrangements are common derivative works.

Understanding Copyright Infringement Laws

As written in the U.S. Copyright Act, copyright law pertains to “original works of authorship fixed in any tangible medium of expression” (17 U.S.C., s 102(a)). Works of authorship include: “(1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and audiovisual works; (7) sound recordings; and (8) architectural works” (17 U.S.C., Section 102 (a)).

Copyright does not extend to works that lack originality, works in the public domain, U.S. government works (17 U.S.C., Section 105), ideas, procedures, processes, systems, methods of operation, concepts, principles, discoveries (17 U.S.C., Section 102(b)), or names, titles, and short phrases (e.g., mottoes, slogans; Circular 34, 2002). Patent, trademark, and contract law are potential sources of protection for ideas, data, discoveries, or creative slogans that are not protected by copyright law.

What Copyright Protects

The U.S. Copyright Act protects the intellectual property rights of original authors in their creative forms of expression-their creative works. Copyright law accomplishes this by giving authors exclusive rights to their creative works. The phrase “exclusive rights” refers to the legal rights of authors of original works to exclude others from engaging in specific activities. In short, the U.S. Copyright Act gives authors exclusive rights of ownership in their original works.

When Protection Begins

The law is explicit that “a work is created” when it is fixed in a copy…for the first time” (17 U.S.C., Section 101). E.g., draft one of a manuscript is copyrighted.

When a Notice is Required

Current copyright law does not require a copyright notice. Nevertheless, all authors are well-advised to attach a notice to their work. The copyright notice advises all readers as to whom the author is and the date of creation (i.e., the most recent date of “fixation” in a tangible medium of expression”).

The copyright does not need to be registered with the U.S. Copyright Office (17 U.S.C., Section 408). The bundle of rights exclusive to the author attach to the work, whether it is registered or not. However, suppose you wish to sue another party for infringing your copyright. In that case, you must register your work beforehand with the U.S. Copyright Office (17 U.S.C., Section 411).

Businesses need to be aware that copyright protection is date and fact-sensitive. The publication date determines the duration of copyright protection and the necessity for observing certain formalities related to copyright protection. For works published after 1977, copyright protection lasts for the author’s life, plus seventy years. Depending on the publication date, if the work is for hire, meaning done in the course of employment or specifically commission, the copyrights last between 95 and 120 years. At the end of the copyright protection time period, the work becomes part of the public domain, meaning the work is available for anyone to use without permission or restriction.

Here is an article for more detailed information.

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Copyright Infringement Examples

Following are some examples of copyright infringement.

  • Downloading music or films without paying for their use
  • Copying any literary or artistic work without a license or written agreement
  • Recording a film in a movie theater
  • Posting a video on your company’s website which features copyrighted words or songs
  • Using copyrighted images on your company’s website
  • Modifying an image and then displaying it on your company’s website
  • Creating merchandise for sale which features copyrights words or images

Is Copyright Infringement a Crime?

The short answer is no. Technically copyright infringement is not a crime. Copyright infringement is a civil matter, which the copyright owner must pursue in federal court. Under certain circumstances, the infringement may also constitute a criminal misdemeanor or felony, which the U.S. Department of Justice would prosecute.

Copyright Infringement Punishment

In the U.S., copyright enforcement falls under the exclusive jurisdiction of the federal courts. Note that the copyright holder cannot sue for copyright infringement unless they have registered their copyright with the U.S. Copyright Office. Registration brings the copyright under the legal jurisdiction of the U.S. Copyright Act, which has given the right to state courts to hear copyright infringement cases. There are a few different punishments for copyright infringement.

Statutory Damages Suffered

This is the award of damages, one of the main punishments for copyright infringement. In addition, the copyright holder can seek statutory damages if you are accused of infringing the copyrights of a copyright holder who registered their copyright within three months of publication.

Statutory damages remove the burden from the copyright holder to prove that the alleged infringement caused actual damages. Under statutory damages, a judge can award extra damages up to $150,000 for willful infringement or reduce damages to $200 for unknowing infringement.

Actual Damages for Violating Copyright Laws

Suppose statutory damages do not apply to a case infringement. In that case, the defendant can be liable for actual damages and any profits from the infringing activity. In proving profits, the copyright holder is required only to provide evidence of the infringer’s gross profits. The defendant’s responsibility is to show deductible expenses or any other mitigating factors that lower the profits from the infringing activity.

Attorney’s Fees and Costs

The court also can order the infringer to pay the copyright holder’s court costs and attorney’s fees. The copyright holder is entitled to this relief only if they registered the copyright within three months of publication.

Criminal Punishments for Violating Copyright Laws

Copyright infringement is a civil action. However, this does not mean that the U.S. government cannot pursue criminal penalties against an alleged infringer, especially if the infringement seems willful and involves commercial profit.

Suppose the infringer makes a retail profit of more than $2,500 by selling ten copies of more within 180 days. In that case, the infringement becomes a felony with a maximum of a $250,000 fine, five years in prison for a first offense, and ten years in prison for a second offense. Generally, commercial profits must be in the millions before the maximum penalties are imposed.

Here is an article for more detailed information.

How to Avoid Copyright Infringement

Following are some ways that you can avoid copyright infringement.

  • Know what copyrights protect
  • Know what is not protected
  • Do not confuse copyrights, trademarks, and other forms of “intellectual property”
  • Learn about public domain laws in your jurisdiction
  • Do not take anything from the internet because it is almost always copyrighted, by default
  • Be creative

If you think that your work has been infringed upon, the best thing for you to do is to review copyright law, know what trademark infringement is and know what patent infringement is. Worst-case scenario, you may have to contact a Copyright lawyer.

In some cases, copyrights are transferrable. To transfer copyright, you can complete and sign a copyright assignment agreement. This allows a third party, known as the assignee, to take ownership of your copyright. To be valid, this agreement must be in writing.

You can also allow another person or company to use your copyrighted material without transferring the copyright. To do this, you would need to complete a Copyright License Agreement.

Your best defense against copyright infringement is knowing what copyrighted materials are and knowing copyright law. However, knowing is half the battle.

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ContractsCounsel is not a law firm, and this post should not be considered and does not contain legal advice. To ensure the information and advice in this post are correct, sufficient, and appropriate for your situation, please consult a licensed attorney. Also, using or accessing ContractsCounsel's site does not create an attorney-client relationship between you and ContractsCounsel.


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