Copyright Infringement

Too many small business owners assume that just because something is on the internet, it must be free to use. For example, have you ever:

• copied and pasted an image from a Google search to use on your website?
• used an image from a stock photography database without reading the licensing terms?
• created a video for your social media and used music that you acknowledged you didn’t have the rights to?
• streamed music in your place of business without having a business account with your streaming service?

​In each of these instances, your business is likely to receive a nasty cease and desist letter accusing you of copyright infringement and demanding the immediate payment of money damages. 

What is copyright infringement? 

Remember: Copyright gives the owner the exclusive right to do certain things with their work (or give others permission to do those things). The bundle of rights included under the umbrella of copyright includes the right to:
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• make copies of the work,
• make derivatives of the work,
• distribute the work in any way,
• perform the work (including playing a recording of the work), and
• display the work.

So copyright infringement occurs anytime you use someone else’s work without their permission. Copyright law imposes strict liability on all instances of copyright infringement. This means your intent doesn’t matter. Acknowledging that the work isn’t yours doesn’t matter. (In fact, all you’ve done is admit to copyright infringement.) Ignorance of the law doesn’t matter.

What are the penalties for copyright infringement?

​If your business commits copyright infringement, then you will have to pay either:

• the copyright owner’s actual damages and any profit you earned; or
• because actual damages can be difficult to prove, statutory damages* ranging from $750 to $30,000 “as the court considers just” for each work involved in the copyright infringement.

If the copyright owner can prove that your copyright infringement was willful, meaning you knew you were infringing the copyright owner’s rights (or you recklessly disregarded their rights), then the court may increase the award of statutory damages to $150,000.
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And in addition to damages, the court can order you to pay the copyright owner’s reasonable attorneys’ fees. 
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What about fair use?

​Fair use is an affirmative defense to copyright infringement, meaning you won’t be held liable for damages if you can prove that you used someone else’s work for purposes of criticism, comment, news reporting, teaching, scholarship, or research. In determining whether your use is “fair,” the courts ask:
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• Why and how were you using the work? Was your use of the work for commercial purposes?
• Was the original work factual or creative?
• How much of the work did you use?
• How did your use effect the potential market for the work or the value of the work?

The purpose of the fair use doctrine is to permit uses of copyrighted material that are considered beneficial to society, not to allow you to make money off of someone else’s work or to use their work to promote yourself. Even relatively small uses of someone else’s work have been found to constitute copyright infringement and not fair use.

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​Hopefully, this clears up many of the misconceptions surrounding copyright infringement. If you use someone else’s work without their permission, it’s often a matter of when, not if, you will receive a cease and desist letter demanding payment of statutory damages and attorneys’ fees. The fact that you found it on the internet, only used a small amount of the work, or simply didn’t know better doesn’t change the calculus.
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If you have questions about protecting your rights as a copyright owner or responding to a cease and desist letter:

Schedule A Consultation

*Statutory damages are only available if you register your copyright within three months of publication or prior to the copyright infringement.