I've Been Accused of Copyright Infringement
What Should I Do Next?
Written by Gregory L. Phillips, Founding Partner
We often associate copyright infringement with the notorious copyright cases that rocked the music and film industries in the early 2000s. However, copyright infringement is not limited to the Robin Thickes and Pharrell Williamses of the world. Nor are copyright infringement suits only filed against internet pirates or musicians. Companies or individuals in any industry can be accused of copyright infringement if they misuse copyrighted content.
Even if the copyright infringement was accidental, the resulting lawsuit and potential fees and punishments could be quite severe. With almost endless content available at our fingertips and easily downloadable via the internet, the opportunities for infringing on copyrighted material have multiplied.
There is a common misconception that anything accessible online can be shared. As a result, the line between sharing content and stealing copyrighted material has become blurred. Individuals and businesses can inadvertently infringe on copyright even if they had no intention of breaking the law.
You may, for example, feel like sharing an amusing meme via your social media account. However, the post itself might contain copyrighted content, such as images or even quotes that have been stolen or appropriated from elsewhere on the internet without proper attribution. In most cases, harmless content sharing won't result in a lawsuit. But, you never know. It's far better to be safe than sorry. That's why it is essential to understand and familiarize yourself with the basics of copyright infringement law and what to do next if you find yourself accused of copy infringement.
What is Copyright Infringement?
Copyright is a form of protection for original works of authorship, which includes, but is not limited to, "literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture."
Common law copyright protection automatically applies the moment the work is created by the original author.
Thus, no registration is necessary for common law copyright protection. However, the author can register for both state and federal copyright protection that provides additional rights greater than common law protection, such as the right to obtain an immediate injunction against a potential copyright infringer.
A copyright gives the copyright holder the exclusive right to reproduce, distribute, perform, display, and, more importantly, create derivative works based upon the original work.
Copyright infringement occurs when someone uses (e.g., copies, sells, distributes, displays) an original work without the express consent or permission of the creator or the copyright holder.
It is that simple.
I've been accused of copyright infringement.
What should I do next?
When a copyright owner notifies you of copyright infringement, the letter (also known as a "demand letter") often mentions filing a court action against you. It is easy to panic or make rash decisions when confronted with the threat of a potential lawsuit. This is especially true when a copyright holder is seeking thousands or even hundreds of thousands of dollars in damages for willful copyright infringement.
However, impulsive reactions at this stage can do more harm than good. Instead, take a deep breath and take time to understand the exact nature of the claim made against you or your business.
For the best outcome, it is essential to remain calm and take the following five steps:
1. Don't immediately contact the copyright holder.
When being accused of a crime, a common knee-jerk reaction may be to reach out to the copyright holder for an explanation or to explain your side of the situation.
However, anything you say can and will be used against you. The party seeking damages can use what you say to extract concessions. Or, you may misspeak or misunderstand what is being communicated to you, resulting in further problems.
Rather than react reflexively to an unexpected demand letter, it is crucial to take a step back and consult your business attorney to make a legally informed decision about how to handle the situation.
2. Don't ignore the notification.
Ignoring an infringement notice and hoping it will go away, especially without consulting with a copyright lawyer, is a bad idea.
It may be tempting to ignore the accusation while stopping any potentially infringing activities and removing infringing works; however, doing so may result in increased damages. Furthermore, you should never overlook any deadlines indicated in a demand letter. Instead, thoroughly read what the accuser has to say. A typical demand letter will include evidence of copyright registration as well as the statutory damages for copyright infringement.
While the dollar number for damages, which can stretch into the hundreds of thousands of dollars, may look intimidating, it is crucial to understand that this is likely not the amount in damages that will be sought in court. Many demand letters attempt to inflate the dollar amount of damages using irrelevant claims that will likely be inadmissible in court.
3. Gather facts and determine the validity of the claim.
According to the World Intellectual Property Organization (WIPO), gathering all the facts relating to an alleged violation is crucial.
Accused parties should use the facts to determine if an accuser's claim is valid.
Facts are the foundation to building your case. Without all the facts, it is difficult to determine the next course of action. Your investigation of the facts should allow you to answer the following questions:
Did my company use, profit from, or otherwise infringe on the copyrighted works listed in the demand letter?
Where did the copyrighted material come from, or how was it obtained? Does copyright still protect them?
Did my company "knowingly" use the material in the manner alleged in the notification, or was it inadvertent?
Does my company have a valid license or permission to use the material? If a license or assent was obtained from the owner, find proof of the license or written authorization, and check the terms and conditions to make sure your usage complied.
4. Consider valid defenses.
While copyright protection is broad, not all works are entitled to copyright protection. If usage of the work or the work itself falls under the umbrella of one or many of these exceptions, you may have a valid defense.
The most common defense many companies employ is to assert that the work itself is not covered by copyright protection. For example, copyright protection does not apply to works that are factual or common knowledge.
Or, perhaps, the copyright itself has expired, and the work in question is now in the public domain.
Copyrights generally expire after 70 years, in the absence of a copyright renewal, after an author or creator's death.
Many movies, books, and records from the first half of the 20th century are now available for anyone to use. However, companies should not assume that older works are automatically copyright free. In 1998, the US amended its copyright laws to extend protection to older works for an additional 20 years. Other works, such as most old movies, have had their copyrights renewed and cannot be freely shared or distributed.
Another commonly cited defense is fair use. Fair use is a legal doctrine designed to promote freedom of expression by allowing the unlicensed use of copyright-protected works in certain circumstances. This may include commentary, parody, research, and education. Unfortunately, this is where the interpretation of the law comes into play. There is no surefire formula to predict whether or not your usage of a copyrighted work falls under the protection of fair use. Instead, fair use lawsuits are typically decided on a case-by-case basis.
Fair use allows for limited use of copyright-protected work without permission, such as for commentary (including parody), research, and education.
There is not a straightforward formula to determine whether your particular usage falls under fair use protection, which makes it difficult for non-lawyers to make that determination on their own.
If you have received permission to use a copyrighted work, and have used the work according to the terms and conditions agreed upon, you should have a valid defense.
5. Contact your copyright attorney.
This is the most critical step to take. Some would argue that this is the very first step all business owners and companies should take when confronted with a potential copyright infringement lawsuit.
Make sure to find a copyright lawyer experienced in intellectual property law. Copyright law is nuanced and complex.
How you respond to a copyright infringement notification could be the difference between successfully defending an adverse case against you or being slapped with hefty financial penalties.
While copyright law may seem daunting to those without legal experience, the right legal team can help you determine if your copyright infringement accusation is legitimate. They can also negotiate settlements, and protect your business from legal action.
Can I go to jail for copyright infringement?
Yes, violation of copyright laws is considered a criminal offense if the violation is willful and involves a certain amount of commercial profit.
Offenders can receive up to 5 years in prison. However, most copyright cases are only subject to civil penalties, discussed in the following section, which does not involve any prison time.
What are the penalties for copyright infringement?
Most copyright holders will ask for a licensing fee. The amount of the damages requested should be clearly stated in the cease-and-desist order or the demand letter. Typically, the amount of the costs demanded will cover the time in which your business allegedly used or profited from the work without permission. If the accusation is valid, your lawyer can propose and negotiate a settlement on your behalf.
If the accusation escalates to litigation, statutory damages may enter into the picture.
A copyright owner may be entitled to statutory damages between $750 and $30,000 per infringement.
If willful infringement is proven in court, statutory damages can be as high as $150,000 per offense. While these numbers may appear daunting, it is also very costly for the copyright holder to attempt to take the dispute to court and risk losing.
Both alleged copyright violators and their accusers are incentivized to settle the dispute outside of the courtroom. That's why it is vital to get a copyright lawyer involved immediately upon receiving a copyright infringement letter. A good copyright lawyer can direct the initial response to the first notification of infringement, which sets the tone on how to resolve the accusation in a timely and cost-effective manner.