With easily copied material available on the Internet, the likelihood of copyright infraction has increased. Copyright is a legal protection for the creators of original literary, musical, artistic and intellectual works. Protection generally lasts until 70 years after the creator’s death. A copyright owner has the exclusive right to reproduce, distribute, display and prepare derivative works of the original work. Protection automatically exists as soon as the work is in fixed or tangible form, but optional copyright registration gives the owner the right to sue in federal court to protect the copyright.
Copyright infraction, often called infringement, occurs when someone other than the copyright holder uses the original work without permission from the creator. The creator must have a valid copyright claim to the work and must show that the copied work is substantially similar or has a striking similarity to the copyrighted work. Copyright law does not penalize a person who independently creates a work that is remarkably similar to a copyrighted work. Non-profit use or use that does not monetarily benefit the third party may still constitute copyright infraction.
Copyright Owner Permission
To avoid liability for a copyright infraction, you must obtain permission from the copyright owner to use the work. After an email or phone call, a written follow-up letter containing details about the scope and manner of the use will help prevent future misunderstandings. A letter requesting permission should include contact information, the title or URL of the copyrighted work and the reasons for and manner of future use. The presence of a work on the Internet does not imply permission to copy the work, and citing the author’s name will not necessarily protect you from an infringement claim.
Avoiding Infraction Claims
The fair use doctrine may allow a third party to use a copyrighted work without the author’s permission. No clear formula exists for determining fair use, but use for purposes that benefit society, such as research, review or news reporting, often fall under the fair use exception. Creative works generally have greater protection from fair use than factual or newsworthy works. If a work is available online, a third party may possibly avoid an infraction claim by linking directly to the original work instead of copying it.
Consequences of Infraction
If the copyright has been registered with the U.S Copyright Office, the copyright holder can sue in federal court to recover damages from unauthorized use of the work. If a court rules that the third party, or defendant, is liable for copyright infringement, the copyright owner can recover actual damages, such as lost profits. Statutory damages can also apply in some circumstances, such as cases in which the plaintiff can prove that the infraction was willful. In 2012, statutory damages range from $750 to $150,000 per infringement.