The Internet has caused publishing of all kinds to increase exponentially. Websites, blogs, and other content continue to proliferate and demand increases daily. More materials than ever before are available at the touch of a finger or click of a mouse.
However, not all materials are available for use, although it may seem difficult to tell. If you have used an image, part or all of an article, a video, or other material created by someone else, you may receive a letter claiming you have committed copyright infringement. This letter is often called a demand letter or a cease-and-desist order.
The actions you take from that moment will guide the outcome.
WHAT IS COPYRIGHT PROTECTION?
“A form of protection provided by the laws of the United States for original works of authorship, including literary, dramatic, musical, architectural, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural, and audiovisual creations.
Copyright literally means the right to copy but has come to mean that body of exclusive rights granted by law to copyright owners for protection of their work. Copyright protection does not extend to any idea, procedure, process, system, title, principle, or discovery. Similarly, names, titles, short phrases, slogans, familiar symbols, mere variations of typographic ornamentation, lettering, coloring, and listings of contents or ingredients are not subject to copyright.“
WHAT IS COPYRIGHT INFRINGEMENT?
Copyright infringement occurs when works protected by copyright law are used without permission, including:
- Images
- Books
- Music
- Film
Typically, permission is given in the form of a license. If permission is not obtained, the use infringes on the copyright owner’s exclusive right to:
- Perform
- Reproduce
- Distribute
- Make a derivative work of the original
WHEN DOES USE WITHOUT PERMISSION NOT INFRINGE?
There are certain times when copyrighted material may be used without permission or the need for a license.
FAIR USE
Fair use is a concept that allows the use of a limited portion of the work for commentary, research, and education. Fair use also includes parody, in which allows the use of an entire work for satirical purposes with the intention to provoke thoughts or feelings, or to provide commentary.
The courts use four factors to help determine when usage is fair use; you may find them useful as you research your case.
- What is the purpose and character of the use? Is it of commercial value? Is it for non-profit or educational use?
- What is the nature of the copyright protected work?
- What portion of the work is used in relation to the work as a whole?
- What is the effect on the potential market for or value of the protected work?
If you are using copyrighted materials commercially, you are less likely to win a judgment of fair use. Examples of fair use include quoting excerpts for criticism or commentary, quoting from a work you are critiquing, or reproducing material for classroom work.
PUBLIC DOMAIN
A work is considered to be in the public domain if it is not protected by copyright, the copyright has expired, or the copyright holder allows the work to be used freely without attribution or permission. Many older works have expired copyrights, particularly if the author has been dead for some time.
A search on the Internet can often provide information on a Creative Commons license or the current copyright status of any work. Creative Commons is a non-profit organization with the mission of expanding the range of works legally available.
Government agency and employee content is always free to use without attribution or permission.
WHAT TO DO UPON RECEIPT OF A NOTICE OF COPYRIGHT INFRINGEMENT
The first step is Do Not Panic. You do not need to respond immediately.
There are several steps you can take to determine whether you are actually violating copyright, so do not do anything rash. In particular, do not communicate directly with the copyright holder or the holder’s lawyer. Any information you give over can and will be used against you if the case is litigated, increasing the amount of damages you could be asked to pay.
On the other hand, do not ignore the notice letters. Doing so may cause the copyright holder to expend additional resources to defend the copyright, which will be added to the damages. Since the cost of litigation usually runs to six figures, the amount awarded to the copyright holder could be substantial.
DO YOUR RESEARCH
Try to determine if the claim is valid. Find out:
- Where the materials came from
- Whether you have a license or obtained assignment of the works or if the license was obtained under another name
- If the works listed in the letter are really the ones you used
- Whether you are using the works in the manner claimed in the letter
- Are the works under public domain or can you claim fair use?
If you did obtain permission, find a copy of the license or access the database where it resides. Check the terms and conditions to make certain you are still under the contract period. If you have continued to use copyrighted material past the amount of time agreed upon or have allowed more people access than permitted, you are infringing.
CONTACT AN EXPERIENCED INTELLECTUAL PROPERTY LAWYER
Gather your research and consult with legal counsel. If the claim does not appear valid, you may be advised to ignore it or to let the other party know of your findings and continue to use the content.
You or your lawyer can write and send a response to the claim of infringement and propose the next steps for settlement, which could include sending the licensing fee, some other settlement amount, or removing the infringing material. Most copyright owners are reasonable in their demands. Generally payment of the license fee is all that is required.
Receiving an accusation of copyright infringement does not require an immediate response. Take time to validate the claim and consult a business attorney in Austin for your next steps.
