Although avoiding copyright infringement might seem straightforward for companies, brands, artists, and creators, there are a lot of hidden pitfalls in copyright law that, if you’re not careful, could result in an infringement on someone else’s intellectual property, even without you knowing it. While it isn’t necessary to familiarize yourself with every aspect of copyright protection, there are a few useful tips to avoid copyright infringement which anyone can follow, and in most cases can help you steer clear of infringement claims.
What Is Copyright Infringement?
Copyright infringement occurs when someone uses, copies, displays, repurposes, or otherwise recreates someone else’s original creative work without obtaining permission of the copyright owner. Some of the more common forms of copyright infringement include:
- Reusing copyrighted designs or images on a website or social media
- Copying or performing a musical artist’s original songs
- Showing or online posting of copyrighted films or videos (or portions/clips of them)
- Copying a literary or artistic work without permission or a license agreement
- Selling merchandise featuring copyrighted designs, words, or images
Most of the above intellectual property violations might seem fairly obvious, and are known as primary infringement. However, under copyright law, you can also be guilty of what is called secondary infringement. Examples of this include the following:
- Adding your original material to copyrighted content
- Receiving copyrighted material from someone other than the copyright owner
- Consuming a copyrighted work being displayed without the owner’s permission
- Watching other people using copyrighted content
One common misconception is that it’s OK to reuse copyrighted content if you add a disclaimer such as “I am not the copyright owner” or “I don’t have the rights to this.” But unless the original creator gave express permission, you may be liable for copyright infringement.
Understand what copyright laws protect
Any original creative work, including images, designs, music, videos, films, architectural plans, recorded speeches, etc., automatically receives copyright protection. There are exceptions such as fair use, public domain, or creative commons, but generally speaking, all creative works receive automatic protection at the moment of their creation.
Do not copy anything
If you did not create, buy, or license the material you are reusing, you may be liable for copyright infringement. The internet in particular is an especially treacherous minefield for intellectual property rights. Just because you find something for free online doesn’t mean you have the right to reuse or reproduce it. Even reposting someone else’s original work with attribution on your own website or social media profile can be considered infringement.
Don’t use any content without consent
Since all original content is protected under copyright law unless otherwise indicated, a good best practice is not to reuse ANYTHING unless you get the owner’s consent, or unless you are absolutely sure that they have granted permission for others to reuse the work, or the intellectual property clearly falls under public domain or fair use doctrine. This should be explicitly recorded, with written documentation being the gold standard for consent.
Create unique content
The easiest way to avoid copyright infringement is by creating your own original content, 100% from the ground up, without copying any specific aspects of anyone else’s work. Inspiration is one thing, and copyright law is written with plenty of consideration for drawing on outside influences which do not directly copy other original works. Document your process to help counter any frivolous infringement claims, or to show that any accidental copying of protected material was done without malicious intent.
Always get written copyright agreements
If you are using a copyrighted work with permission, it’s essential that any usage or license agreements are put down in writing. An oral agreement has little chance of holding up in court.
Make your copyright policy clear to customers
Remember, copyright doesn’t just apply to other people’s creations– it applies to your own, as well. Your original creative work is your intellectual property, and you are the only one with exclusive rights to use, reproduce, publish, and license it to other people or entities. It is just as illegal for someone else to copy your work without permission as it would be for you to copy theirs.
What Are the Possible Penalties for Copyright Infringement?
Much like patents or trademarks, you may register a copyright with the U.S. Copyright Office, but it will be up to you to enforce your rights. The first step in the case of possible infringement is typically for the copyright owner to send a Copyright Infringement Notice to the offending party. If the notice is unsuccessful, the copyright owner may proceed with a civil lawsuit against the infringer as long as the copyright owner has a copyright registration.
If infringement is proven, penalties for the copyright infringement may be civil and/or criminal in nature, including:
- Damages and profits lost as a direct result of infringement
- Statutory damages ranging from $750 to $30,000 per infringed work and up to $150,000 in the case of intentional or wilful infringement
- Attorneys fees and costs
- Criminal penalties up to $250,000 in fines per offense and up to 5 years in prison
Work with an Experienced Copyright Attorney
Our team of dedicated copyright attorneys can help protect you against infringement actions, and advise you on steps to avoid or deal with frivolous lawsuits. They can also assist you with registering your creative works, or by pursuing copyright penalties if your IP has been infringed upon. Contact us to book a consultation today!
About the Author
Matthew McKinney practices in all areas of intellectual property, representing a wide range of clients in connection with the acquisition, transfer, enforcement and defense of their intellectual property rights.