Copyright Infringement and Fair Use

by | May 16, 2017 | Intellectual Property

Copyright Infringement
Copyright law protects original expressions.  Original expressions include: writings, art, songs, music, dance, software, blue prints etc.  Protection is automatic (but enhanced with a copyright filing) and it is protected for the life of the crated plus 70 years.
Copyright infringement (colloquially referred to as “copyright theft”) is when someone uses copyrighted materials without the creator (or licensor’s) permission.
For example, if Author A authors a book and Author B uses the copy in their book which it distributes to others, that would be an infringement upon your rights. Another example of copyright infringement would be someone copying your website blogs and articles and placing them on their website without your permission.
A lot of people get plagiarism confused with copyright.  Plagiarism is copying a source without giving the source credit.  However, even giving credit to the author does not prevent copyright infringement.
Fair Use
There is a lot of copyright infringement happening under the guise of “fair use” doctrine. However, fair use only refers to the use of copyrighted materials for transformative purposes. For example, copying a portion of an article for the purpose of making comment or criticizing the work would be considered fair use of the copyrighted work. Also, parody may make copying a protected work permissible under the law. But there is no guarantee that courts will see use of protected work as fair use if there is a challenge.
US courts look at four factors when deciding if the unauthorized use of copyrighted materials falls under fair use.

  1. How exactly was the copy used?  For example, was it used for a commercial or nonprofit or educational purpose?   Was it used to create a new artistic expression?  The courts will carefully weigh if the unauthorized use of the copyrighted work added something to the work or turned the work into something with a very different character. For example, a parody of a self-help book might be considered fair use if it transforms the original work into something completely different. Also, the use of copyrighted work with no intention of profited is not a guarantee of protection under fair use but it has been considered by the courts.
  2. What is the nature of the work? Courts will look at how creative or original source copyrighted material is. For example, it may be more difficult to claim fair use of truly original works such as a novel or song than an instructional manual on how to fix a flat tire.  The more original the work the more likely it will be protected from fair use claims when the work is copied without authorization.
  3. How much of the copyrighted work was used? The courts are less likely to accept a fair use defense for copyright infringement if a substantial portion of the copyrighted work has been used.
  4. Did the unauthorized use of the copyrighted work impact the work’s market value? In other words, did the copying of the work make it so that the copyright owner was unable to extract any commercial or monetary value from their work?

If someone has violated your copyright you can send them a cease and desist letter or a Digital Millennium Copyright Act (DMCA) take down letter if the infringement happened online. For egregious and repeat offender, you may want to consider taking legal action.   A victorious plaintiff can recover up to $150,000 for a single infringement of a single work.  As works are many times published in volume, why these cases can settle for millions of dollars.
In summary, copyright is a very nuanced area of law.   Be careful to assure your work is original, or obtain permission or an expert opinion that your use does not create liability.
If you believe you may be a victim of copyright infringement you can schedule an initial call with me here.


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