Copyright Infringement: A Trap for the Unwary

Copyright Infringement: A Trap for the Unwary

Consider the following scenario which may sound familiar: The time has come to prepare a newsletter for your organization which will ultimately be posted to your organization’s website. To create a more captivating reading experience for your audience, you include some images. If your next step is to search the internet for images to include in your newsletter, that decision may prove costly for you and your organization. The images you find on the internet may be subject to copyright protection, and, by using those images in your newsletter, you may be infringing on another individual’s or entity’s copyright and opening your organization up to legal liability.

To avoid the potential negative consequences associated with copyright infringement, it is useful to understand some fundamentals of copyright law. Under the U.S. Copyright Act, 17 U.S.C. § 101 et seq., legal protection is provided under federal law for “original works of authorship fixed in any tangible medium of expression….”

“Original works of authorship” under the Copyright Act includes literary works, musical works, dramatic works, and other forms of expression, including photographs. Copyright protection vests with the creator of the work automatically once the work is created. However, if the work was made for hire, the employer or other person for whom they  prepared it is considered being the author of the work and owner of the copyright unless the parties have agreed otherwise. For example, if a newspaper hires a photographer to take photographs of a sporting event, the newspaper will typically be considered the “author” of those photographs and will own the copyrights to them.

Copyright owners can register their copyrighted works with the U.S. Copyright Office, which provides copyright owners with additional legal protection. This is because the owner of a valid copyright who has registered his or her copyright can pursue a lawsuit against an infringer of the copyrighted work. The Copyright Act allows the copyright owner to recover their actual damages, including profits made by the infringing party from sales of the infringing work, or they can choose to recover statutory damages. The court has discretion to award statutory damages for each work infringed in an amount between $750 and $30,000, depending on what the court believes is “just” under the circumstances. However, if the court finds that the infringement was committed “willfully,” the court has discretion to increase the statutory damage award up to $150,000. In addition to statutory damages, the Copyright Act also allows courts to award attorney’s fees and costs to the prevailing party.

Just as it has become easier in the digital age inadvertently to infringe upon another’s copyright, it has also become easier for copyright holders to enforce their copyrights. Copyright enforcement has become a growing industry. Copyright holders, on their own or with the assistance of third-party vendors or law firms, can continuously search the internet for instances where their copyrighted works are being used without their permission. Copyright holders, or others working on their behalf, will then contact the individuals or organizations who are using their copyrighted works without permission and threaten litigation if they are not financially compensated.

If your organization is contacted by such an entity, claiming that you have infringed upon another individual or entity’s copyright, including use of photographs on your website without permission, make sure that the appropriate individuals within your organization are notified so that the decision can be made as to how to respond, including involving legal counsel. Legal counsel can investigate the validity of the claim of infringement, and whether the work has been registered with the U.S. Copyright Office, to determine whether the copyright holder could make a claim for statutory damages or attorney’s fees if they were to pursue legal action. Legal counsel also can help respond to the copyright holder to resolve the claim before it escalates to litigation.

There are also features on search engines that allow you to search for images that have been designated as available for reuse. For example, Google Images Search has a tool that allows you to filter your search results based upon whether an image has been labeled for reuse generally, or for reuse for noncommercial purposes. The next time you or someone in your organization is searching the internet for images to use, such tools can help ensure that you are not using a copyrighted image without permission.

Point being, if you are pulling images from the internet for your organization’s newsletter, website, or other marketing materials, you may open your organization up to a claim for money damages under federal copyright law. Therefore, it is important to keep these copyright concerns in mind the next time you or someone else in your organization is posting content to your organization’s website, and to seek the advice of legal counsel if you have questions regarding these issues.

Contributing author, Mollie Werwas, Kopon Airdo.

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