E65: Understanding Copyright Infringement: What Happens When You Cross the Line

These are all examples of intellectual property that we come across and that we may refer to in our own materials. We may. Use in providing services to our clients, but whether through negligence or ignorance, if we use other parties copyrighted material without permission, we may be guilty of copyright infringement. At best. It is embarrassing. We need to apologize. We may need to clean up a mess that we've made. Maybe we've delivered something to a client that we didn't have rights to.

At worst, though, we can get into a fair amount of trouble under intellectual property laws. So this is the first of a three part series about copyright infringement. In this part one, I'll talk about what happens when a copyright is infringed. In part two, I talk about how to avoid being a copyright infringer. And finally, in part three, we talk about ways to prevent your copyrights from being infringed. So first, what Constitutes copyright infringement.

Copyright infringement occurs when a party violates any of the copyright owner's exclusive rights. As you recall, copyright provides a bucket exclusive rights to the copyright So when you are the creator of an original work, you have an exclusive set of Rights that allows you to control your creations, how they're used and the exclusive right to earn compensation from them, the exclusive right to benefit from their use. So, briefly, those buckets of rights include the right of reproduction.

That's the right to make copies of the protected work in any form, not just imprinted copies or books, but also digital downloads. Just making a copy and, pasting it somewhere else in the internet. That is exclusive right of the copyright owner, the right of adaptation also called derivative rights. So that's the right to modify the work so you can create a new work from it. That new work is a derivative of the original one, and that is still owned by the original copyright owner.

And so an example of that would be turning a book into a screenplay. and even turning a screenplay into a movie is actually another, derivative, right? The right of distribution. So that's the right to distribute the copies publicly for sale or for license. And so that is, actually separate from the right of reproduction. the right of reproduction applies whether or not that's for sale. so the right of distribution, generally.

It refers to the sale or licensing of the material, the right of public performance. So that would be the right to publicly perform to, read your novel out loud to, dance your dance in public, to perform the play that you wrote. so any performance based works, you have an exclusive right to public performance. The right to public display.

This typically refers to art, the right to publicly display your art is, that of the copyright owners, think about, the artwork you may have in your home that is original art and you own that. Piece of artwork, but you don't actually have the right to publicly display it. the copyright owner has the right to do that and similar to derivative rights, the right of translation. So to translate your work into other language, or to authorize a 3rd party to do any of the things that we talked about.

also the exclusive right of the copyright owner. So. when there's a valid copyright involved and there has not been authorization from the copyright owner, an infringement when, both of these following are present. First, the infringer has actually copied, you have to actually have copied the copyright owner's work. sometimes, someone will accuse someone of copying their work, but guess what? There's no way they could have had access to it. it's been under lock and key in my drawer.

I mean, it's kind of nutty, but people actually do say, Oh, my God, this is exactly what I wrote. But no one's ever seen their manuscript it's never been published Maybe they sent it to agent at some point, but that they never did anything with it because it, they didn't want it. And somebody else write something and it seems an awful lot like it's been copied, but did they actually copy it? Did they actually have access to That original work that they're claiming was infringed.

So there has to be actual copying and then they have to have copied enough of it to give rise to liability. So, taking a little snippet here and there, Does not generally give rise to liability. Now, if it's an haiku, and you took a line out of haiku, then, that could give rise to liability. But, taking a sentence out of an entire manuscript probably would not.

So, as you can tell, this is not a cut and dry analysis, the particulars of the activity Will determine whether or not there has been infringement. So, let's take the traditional case of, let's just say there's a single work and, they did not copy it literally. or it's in its entirety. So, when you have that circumstance, you're going to have to have a fact finder, which. Is a court of law to figure out whether or not, there was a copying that gives rise to liability.

in that circumstance where they haven't literally just lifted the whole thing and copied it and put their name on it, which people do, but generally, subtler than that. They have been so heavily influenced by it that It is considered substantially similar and that in that case, generally, we would need a court of law to determine that and whether or not there'd be liability there. So, what we need to remember is that the fact that we own.

A copy of that copyrighted work does not grant to us any of the exclusive rights that the copyright owner has. So, again, they have the right to reproduce it and to distribute, perform it, display it, adapt it just because I have a copy of a book. I don't have any of those rights of the copyright owner just because I have. A piece of artwork. I do not have any of those rights of the copyright owner.

So some examples of copyright infringement that unfortunately happen to frequently piracy, that's downloading or distributing of. Copyrighted songs or movies or TV shows without authorization. And that would include, even if all you're doing is taking them and uploading them to YouTube, even if you're not personally, getting any money from it, you don't have the right to, make copies. And distribute somebody else's copyrighted works, right? reproducing artwork.

So making copies of paintings or photographs or graphics without permission Selling them or displaying them So a lot of times this happens where people will find an image on the internet And they put it on their website without permission if you don't have permission to use What would?

Fall into a category of copyrighted works, then you should assume that somebody owns them and you need to get permission for, reprinting of eBooks, especially because it's so easy to do, to just download something and, offer it. Even if you're offering it for free, if it's not yours, that would be an infringement. sampling, I mean, we've all heard about, famous, Litigation regarding someone sampling someone's music, and without getting clearance from virtual creators.

We know that can be a huge, huge liability, unauthorized adaptations. This one happens in the business world. know, I do get questions about, hey, there's this. Book and I want to create a workbook based on this book, or I want to create a course around this book. and so those would be considered unauthorized adaptations if you don't have permission from the copyright owner of that.

Work and then website content, you again, people tend to think that things on the Internet are just free and they are not. So, lifting somebody else's website content. I think crazy when I hear that entire websites have just been lifted and they give it a new URL and they go to town with someone's entire website. and so obviously that would be a copyright infringement. So remedies, remedies that are available against a copyright infringer.

So the primary remedy are monetary damages, money damages. So the aim of monetary damages is to Compensate the copyright owner for the losses that they incur due to the infringement. So there's one, the loss that the copyright owner has, but also they want to the profits that the infringer may have realized. Like you don't get to get. Profits from my materials and so the monetary damages could be the actual damages that the copyright holder suffered as a direct result of the infringement.

So that might be the lost sales or lost licensing fees. let's say you, generally, I'm sell, a hundred books per month and somebody else has stolen it and now suddenly you're not making any sales, those would be actual damages that loss of the sales that you would typically have made had they not. Infringed your copyright. similarly, the profits attributable to the infringement. So let's say, they stole your book, but somehow they were able to sell even selling it for 50 bucks.

Each. They're able to sell it for 100 bucks. Each. Well, you get the profits from their 100 dollar, per uh, sale profits. and that's just to make sure that the infringer does not benefit financially from their activities. Under the U. S. laws, there are statutory damages. So statutory damages are preset amounts that are set forth under the law that the copyright holder can opt to receive instead of proving actual damages or profits.

So let's say you just have stuff that's for free on your website. you have free eBooks that you give away that are lead magnets. and so you can't tie directly any actual financial loss to it. You can't say, okay, this is the dollar amount and the other person didn't sell it either. They just took it and used it as free. Magnet themselves. so there's not profits directly attributable to that infringement, but you have statutory damages that you can get.

So you can just go and say, Hey, they copy my white paper. They, distributed hundred of them. and so I, by statute get. can range from a couple hundred dollars per work to, tens of thousands, depending on the circumstances of that infringement, but you don't have to prove, lost sales or prove profits on the part of the infringer. So that's very valuable as well. And, of course, all these things require registration the copyright we're not talking about copyright registration here.

But all these remedies require that your copyright work was registered in some cases, you can get attorneys fees. I mean, suing people requires lawyers and lawyers cost money litigation is expensive. And so to be able to get. your attorney's fees and cost of infringer having to pay for them, are those that's among the remedies for the infringement and maybe some additional damages for really egregious behavior, someone's just just a habitual.

Infringer, they may have putative damages that can be multiples of what the actual damages are. if you are selling licensing, revenue generating, works, you know, I always recommend that any revenue generating work should be registered and then keeping records of those. I imagine you would be if the revenue generating, but those records would be the basis of for your monetary damages claims in the event of infringement.

And then in addition to money damages or monetary damages, there are things like injunctive relief. So an injunction stops someone from doing the infringing activity. So, you would get an injunction to say, you Take the white paper off of your website, or if someone infringed your, right of adaptation, they used your book as the basis of a course, you can. Cause them to take down the course and stop distributing the course.

and speaking of takedowns, there's a thing called the digital millennium copyright act with takedown notices. And so let's say you are surfing the internet and you see something of yours on somebody's website, know, there is a process for you just to send a takedown notice. You don't have to get a lawyer for this. And you send to that internet, to the website. owner. Hey, somebody posted my materials on your website. You send a takedown notice.

You, you tell them, you know, this is mine, blah, blah, blah. And then they are required to take that down. and then, you if it's something that is a physical copy, like physical books that are infringing. they're be impounded or require the destruction of those articles. if it's something that's coming from overseas, they can capture them at the border, generally not applicable to what we do. but still important, remedies in the event that those things happen.

So what we just talked about were all civil penalties in the event of a copyright infringement. So, the question is, are there also. Criminal copyright provisions, and yes, there are the Copyright Act does have criminal provisions. copyright infringement can be a crime. So it is a criminal offense when we willfully infringe a copyright.

So if it's willfully committed, and it's for, financial gain for commercial advantage, that Can be criminal, especially when the value of that commercial game goes up, the steeper the criminal penalties are, and so you can, in addition to Being sued civilly, you can also be prosecuted criminally for the same infringing act. in terms of elevating something from kind of civil liability to criminal liability. courts have found willfulness when a defendant was given legal notice.

That his conduct was infringing or when he had noticed that it was illegal, and that they continue to do it anyway. So for example, you repeatedly take your camera phone into advanced screenings of movies and record it and put it online. And then, you you're known for that. You've been getting cease and desist orders from near the movie studios. You keep doing it. The court will likely see your actions as being willful. You're intentionally. there's no negligence.

There's no even ignorance, you know, exactly what you're doing. you can be criminally charged for that. other things that may, be considered criminal offenses. If you put like a fraudulent copyright notice on something, so, you know, something is not yours, but you claim it and you put a copyright notice on it and claim it, that can be, fraud. Removing a copyright notice on something for fraudulent intent, like for some reason, something has a copyright notice on it.

Maybe you're trying to sell it as your own. And so you take off the other person's copyright notice, in order pass it off as your own. That can be, Criminal offense, making a false representation of a material fact on the application for copyright registration. When you file a copyright registration, you are asked to represent that. It is original that you are the proper owner. this will be, significant in the face of, AI generated materials.

You need to state honestly, What the origin of the material that you're applying for copyright registration for and say, if you're knowingly making false statements on that application, you could be criminally prosecuted for that. and then willfully, and for the purposes of commercial advantage or private gain, I mean, is circumventing technological, protection measures, which is something that we'll actually talk about in the.

Third one where we talk about ways to, avoid, having your copyright infringed. But example of that would be like watermarking. Like sometimes you will see, images on the internet that has a watermark behind it. You can't just use it. so there are things that you can put on something so you can detect, the origin of material, if someone were to steal it and distribute it. circumventing can be considered willful. and therefore, a criminal, offense.

the penalties for criminal copyright infringement include prison time and large fines. So a first time offender who's convicted of making unauthorized reproductions or distributing at least 10 copies of a work during 180 day period with a retail value of 2500 or more. Can be in prison for up to five years and find up to 250, 000 or both.

If you've previously been convicted of criminal copyright infringement so you're a recidivist, you can be sentenced up to a maximum of 10 years in prison of the 250, 000 in fine. Or both and then for misdemeanors up to 1 year in prison and a maximum fine of 100, 000, which is not insignificant. that is our overview of. Copyright infringement, what it is, the civil penalties and the criminal penalties for copyright infringement. And so, join me in the next session.

We will talk about how to make sure you are not guilty of copyright infringement. Thanks guys. See you next time.