Copyright Infringement, Part 1: What Constitutes Copyright Infringement?
I spend a lot of time talking about protecting our expertise through contracts and copyrights. Owning and controlling the fruits of our expertise is how we create scalable and saleable services businesses.
On the flip side of protection is infringement. If we use the copyrighted material of a third party without their permission--whether through negligence or ignorance (I will not even consider bad intent with my lovely TBIP community)—we are infringing their copyrights.
This is the first of three parts, which are summaries from longer discussions on my podcast, designed to give you the tools to make sure neither infringer nor infringee you be.
Elements of Copyright Infringement
As a general matter, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.
It's important to remember that owning or purchasing a copy of a copyrighted work, such as a painting, doesn't grant the buyer of such work the right to reproduce, distribute, perform, display, or adapt it. Below are some common examples of copyright infringement:
Piracy: Downloading or distributing copyrighted songs, movies or TV shows without authorization.
Reproducing Artwork: Making copies of paintings, photographs, graphics, or other artwork without permission and selling or displaying them.
Unauthorized Use of Photographs: Using a photographer's image without permission or proper licensing, for example, in advertising or on websites.
Uploading Full Videos to Platforms: Uploading copyrighted movies, TV shows, or other videos to platforms like YouTube without permission.
Reprinting Books or E-books: Making copies of books, whether physical or digital and distributing them without the right to do so.
Sampling without Permission: Using parts of copyrighted songs in new music without getting clearance from the original creators.
Unauthorized Adaptations: Creating a course based on a copyrighted work without permission.
Website Content: Republishing articles, images, or other content from websites without permission.
What remedies are available against a copyright infringer?
Monetary (i.e., money) damages are the primary remedies for copyright infringement. Monetary damages compensate the copyright holder for their actual losses, such as lost sales, incurred because of the infringement and to disgorge any profits the infringer may have realized from the unauthorized use.
In the US, statutory damages are also available. They range from a few hundred dollars per work for accidental infringements to tens of thousands of dollars per work for willful infringements. The beauty of statutory damages is that they can be awarded even if the copyright holder cannot prove actual monetary losses or if the infringer's profits are minimal.
Is copyright infringement a crime?
Yep, it can be. It is a criminal offense if: (1) a valid copyright; (2) was infringed by the defendant; (3) willfully; and (4) for purposes of commercial advantage or private financial gain. This would include making publicly accessible a work that was intended for sale, such as recording a movie in the theatre and uploading it to YouTube so it can be accessed by anyone for free. The infringer isn’t benefiting financially, but the harm to the copyright holder may be a crime.
Other copyright-related offenses that can get you in legal trouble:
Removing or altering any notice of copyright appearing on a copy of a copyrighted work with fraudulent intent;
Knowingly making a false representation of a material fact in an application for copyright registration, or in any written statement filed in connection with the application.
And yes, copyright infringers can be sued civilly and prosecuted criminally for the same infringing act.
What Are the Penalties for Criminal Copyright Infringement?
Penalties for criminal copyright infringement include both prison time and large fines. Enough said.😬
Join me next week for a discussion of steps to take to make sure you aren’t an accidental infringer.
As always, when in doubt, Reach out!
Cheers! 🥂
Erin