Copyright Infringement: What is it? How to Enforce and Avoid (2022)

What is Copyright Infringement?

At times copyright infringement is referred to as piracy. This is the use of works protected by copyright without permission for a usage where such permission is required. Using works protected by copyright infringes certain exclusive rights granted to the copyright holder. These rights include reproducing, distributing, displaying, or performing the protected work or making derivative works. Copyright holders are typically the creator of the work, publisher, or other business to whom copyright has been assigned.

Creative Work defined:

A creative work is a manifestation of creative effort, including fine artwork (sculptures, paintings, drawings, sketching, performance art (dance, writing, literature), filmmaking, and composition.

Derivative Work defined:

A derivative work is an expressive creation that includes major copyrightable elements of an original, previously created first work (the underlying work). The derivative work becomes a separate work independent in form from the first. The work’s transformation, modification, or adaptation must be substantial and bear its author’s personality sufficiently to be original and thus protected by copyright. Translations, cinematic adaptations, and musical arrangements are common derivative works.

Understanding Copyright Infringement Laws

As written in the U.S. Copyright Act, copyright law pertains to “original works of authorship fixed in any tangible medium of expression” (17 U.S.C., s 102(a)). Works of authorship include: “(1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and audiovisual works; (7) sound recordings; and (8) architectural works” (17 U.S.C., Section 102 (a)).

Copyright does not extend to works that lack originality, works in the public domain, U.S. government works (17 U.S.C., Section 105), ideas, procedures, processes, systems, methods of operation, concepts, principles, discoveries (17 U.S.C., Section 102(b)), or names, titles, and short phrases (e.g., mottoes, slogans; Circular 34, 2002). Patent, trademark, and contract law are potential sources of protection for ideas, data, discoveries, or creative slogans that are not protected by copyright law.

What Copyright Protects

The U.S. Copyright Act protects the intellectual property rights of original authors in their creative forms of expression-their creative works. Copyright law accomplishes this by giving authors exclusive rights to their creative works. The phrase “exclusive rights” refers to the legal rights of authors of original works to exclude others from engaging in specific activities. In short, the U.S. Copyright Act gives authors exclusive rights of ownership in their original works.

When Protection Begins

The law is explicit that “a work is created” when it is fixed in a copy…for the first time” (17 U.S.C., Section 101). E.g., draft one of a manuscript is copyrighted.

When a Notice is Required

Current copyright law does not require a copyright notice. Nevertheless, all authors are well-advised to attach a notice to their work. The copyright notice advises all readers as to whom the author is and the date of creation (i.e., the most recent date of “fixation” in a tangible medium of expression”).

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The copyright does not need to be registered with the U.S. Copyright Office (17 U.S.C., Section 408). The bundle of rights exclusive to the author attach to the work, whether it is registered or not. However, suppose you wish to sue another party for infringing your copyright. In that case, you must register your work beforehand with the U.S. Copyright Office (17 U.S.C., Section 411).

Businesses need to be aware that copyright protection is date and fact-sensitive. The publication date determines the duration of copyright protection and the necessity for observing certain formalities related to copyright protection. For works published after 1977, copyright protection lasts for the author’s life, plus seventy years. Depending on the publication date, if the work is for hire, meaning done in the course of employment or specifically commission, the copyrights last between 95 and 120 years. At the end of the copyright protection time period, the work becomes part of the public domain, meaning the work is available for anyone to use without permission or restriction.

Here is an article for more detailed information.

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Copyright Infringement Examples

Following are some examples of copyright infringement.

  • Downloading music or films without paying for their use
  • Copying any literary or artistic work without a license or written agreement
  • Recording a film in a movie theater
  • Posting a video on your company’s website which features copyrighted words or songs
  • Using copyrighted images on your company’s website
  • Modifying an image and then displaying it on your company’s website
  • Creating merchandise for sale which features copyrights words or images

Is Copyright Infringement a Crime?

The short answer is no. Technically copyright infringement is not a crime. Copyright infringement is a civil matter, which the copyright owner must pursue in federal court. Under certain circumstances, the infringement may also constitute a criminal misdemeanor or felony, which the U.S. Department of Justice would prosecute.

Copyright Infringement Punishment

In the U.S., copyright enforcement falls under the exclusive jurisdiction of the federal courts. Note that the copyright holder cannot sue for copyright infringement unless they have registered their copyright with the U.S. Copyright Office. Registration brings the copyright under the legal jurisdiction of the U.S. Copyright Act, which has given the right to state courts to hear copyright infringement cases. There are a few different punishments for copyright infringement.

Statutory Damages Suffered

This is the award of damages, one of the main punishments for copyright infringement. In addition, the copyright holder can seek statutory damages if you are accused of infringing the copyrights of a copyright holder who registered their copyright within three months of publication.

Statutory damages remove the burden from the copyright holder to prove that the alleged infringement caused actual damages. Under statutory damages, a judge can award extra damages up to $150,000 for willful infringement or reduce damages to $200 for unknowing infringement.

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Actual Damages for Violating Copyright Laws

Suppose statutory damages do not apply to a case infringement. In that case, the defendant can be liable for actual damages and any profits from the infringing activity. In proving profits, the copyright holder is required only to provide evidence of the infringer’s gross profits. The defendant’s responsibility is to show deductible expenses or any other mitigating factors that lower the profits from the infringing activity.

Attorney’s Fees and Costs

The court also can order the infringer to pay the copyright holder’s court costs and attorney’s fees. The copyright holder is entitled to this relief only if they registered the copyright within three months of publication.

Criminal Punishments for Violating Copyright Laws

Copyright infringement is a civil action. However, this does not mean that the U.S. government cannot pursue criminal penalties against an alleged infringer, especially if the infringement seems willful and involves commercial profit.

Suppose the infringer makes a retail profit of more than $2,500 by selling ten copies of more within 180 days. In that case, the infringement becomes a felony with a maximum of a $250,000 fine, five years in prison for a first offense, and ten years in prison for a second offense. Generally, commercial profits must be in the millions before the maximum penalties are imposed.

Here is an article for more detailed information.

How to Avoid Copyright Infringement

Following are some ways that you can avoid copyright infringement.

  • Know what copyrights protect
  • Know what is not protected
  • Do not confuse copyrights, trademarks, and other forms of “intellectual property”
  • Learn about public domain laws in your jurisdiction
  • Do not take anything from the internet because it is almost always copyrighted, by default
  • Be creative

If you think that your work has been infringed upon, the best thing for you to do is to review copyright law, know what trademark infringement is and know what patent infringement is. Worst-case scenario, you may have to contact a Copyright lawyer.

In some cases, copyrights are transferrable. To transfer copyright, you can complete and sign a copyright assignment agreement. This allows a third party, known as the assignee, to take ownership of your copyright. To be valid, this agreement must be in writing.

You can also allow another person or company to use your copyrighted material without transferring the copyright. To do this, you would need to complete a Copyright License Agreement.

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Your best defense against copyright infringement is knowing what copyrighted materials are and knowing copyright law. However, knowing is half the battle.

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What will you do to avoid copyright infringement? ›

Six steps to protect against copyright infringement claims
  1. Do not copy anything. ...
  2. Avoid non-virgin development. ...
  3. Avoid access to prior design work. ...
  4. Document right to use. ...
  5. Negotiate for enhanced warranty and indemnity clauses. ...
  6. Document your own work.

What do you mean by infringement of copyright? ›

Copyright infringement is the use or production of copyright-protected material without the permission of the copyright holder. Copyright infringement means that the rights afforded to the copyright holder, such as the exclusive use of a work for a set period of time, are being breached by a third party.

What is an example of a copyright infringement? ›

A typical example of copyright infringement is the use of music in your videos. If you have not obtained the permission to use a song as background music for your home movies, business presentations, or your own creative work, then you could be liable for copyright infringement.

How can you avoid copyright infringement with images? ›

If you edit an image that you didn't create, copyright law still applies. The only way to avoid copyright infringement with images is to create unique works, purchase a license to use an image or find a free-to-use image.

How can I avoid copyright and copyright music? ›

Five Ways to Stop Music Copyright Claims on your YouTube Channel
  1. Find royalty free music. ...
  2. Use YouTube's audio library. ...
  3. Use Creative Commons songs. ...
  4. Get #permission from the original artist. ...
  5. Take advantage of fair use.
8 Mar 2020

How copyright is infringed and what are defenses against it? ›

Copyright Infringement Defence

Invalidity The defendant may show and prove that the owner's copyright is invalid. License The defendant may demonstrate that they have a valid license. Public Domain The defendant may opportunely argue that the work done is in the public domain.

What is copyright infringement and what are the punishments? ›

Downloading or uploading copyrighted work without authority constitutes an infringement. Willful copyright infringement can result in criminal penalties including imprisonment of up to five years and fines of up to $250,000 per offense. Copyright infringement can also result in civil judgments.

What are the 3 criteria of copyright infringement? ›

To copyright something, only three elements are required: (1) fixation, (2) originality, and (3) expression.

What is the most common copyright infringement? ›

Image and text copyright are two common types of infringement. The moment you create an original image, whether it's a selfie or a majestic landscape, you automatically own the rights to that image.

What causes copyright infringement? ›

According to the US Copyright Office, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.

What are the two types of copyright infringement? ›

There are two types of infringement: primary and secondary. A primary infringement involves a direct infringement by the defendant. Secondary infringement happens if someone facilitates another person or group in infringing on a copyright.

Should I put no copyright infringement intended? ›

The #1 disclaimer you should never use: “No Copyright Infringement Intended” If you upload a video on YouTube without having the permission of the owner, you have infringed on someone else's right. Point blank period. It actually makes no sense to even include a “no copyright infringement intended” disclaimer.

When can I use copyrighted material without permission? ›

Fair use allows limited use of copyrighted material without permission from the copyright holder for purposes such as criticism, parody, news reporting, research and scholarship, and teaching. There are four factors to consider when determining whether your use is a fair one.

What do you put in the description to avoid copyright on YouTube? ›

Copyright disclaimer under Section 107 of the Copyright Act: This disclaimer appears on content (commonly YouTube videos) that uses someone else's copyrighted content. Including this statement of “fair use” helps protect against copyright infringement claims.

How do I avoid copyright infringement on my blog? ›

Here are a few tips to keep in mind to avoid content ownership issues.
  1. 1) Receive Permission. The best way to utilize copyrighted content is by seeking the author's permission. ...
  2. 2) Use Images from Public Domain. ...
  3. 3) Give Credit. ...
  4. 4) Review Ownership Rights on Social Media Pages. ...
  5. 5) Consider Buying Content.

How do you comply with copyright laws when using images? ›

How can I use copyrighted images legally?
  1. Ask the creator/owner for permission to use their image. When you've been granted permission, you should include a note in the image caption or elsewhere on the page that attributes the source. ...
  2. If your use of the image falls under Fair Use.
12 Oct 2016

When can you claim copyright infringement? ›

If you're copyrighted and registered work has been infringed, you can file a claim for copyright infringement, but you must do so within three years after discovering the infringing act took place because that is the legal deadline for a copyright infringement claim.

Is copyright infringement a crime? ›

Copyright violations can be a federal crime, however. These intellectual property thefts are often a type of internet crime in modern times. Some people do not learn that copyright violations can be a criminal offense until they are being arrested for it.

Why is defending copyright important? ›

It is not just important for you to have permission from the copyright owners and pay for the right to reuse content for the benefit of your business; it is a legal requirement too. Copyright is a form of Intellectual Property Law and gives copyright owners exclusive rights to deal with their works in certain ways.

How are copyright laws enforced? ›

If somebody infringes your copyright, you are entitled to file a lawsuit in federal court to enforce your rights. Remedies include obtaining an injunction or restraining order to prevent additional violations, an award of money damages, and possibly attorneys' fees.

What two things must one show do you prove copyright infringement? ›

The plaintiff in a copyright infringement lawsuit has the burden of proving two elements: that they own a copyright, and that the defendant infringed it. To establish ownership of a valid copyright, a plaintiff must demonstrate that the work is original, and that it is subject to legal protection.

What are the 4 fair use exceptions to copyright? ›

Fair use of copyrighted works, as stated in US copyright law, “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

What are the types of infringement? ›

Infringement can be direct or indirect, and it can be literal or under the doctrine of equivalents.
  • Direct Infringement. ...
  • Indirect Infringement. ...
  • Induced Infringement. ...
  • Contributory Infringement. ...
  • Literal Infringement. ...
  • Infringement Under the Doctrine of Equivalents.
24 Jul 2021

What is an example of infringement? ›

An example of infringing an owner's right of distribution would be if someone sells unlicensed copies of someone else's original work, such as a work of literature or art. For instance, an individual could not copy a famous musician's music and distribute copies of that music for monetary gain.

What is a good copyright disclaimer? ›

The copyright disclaimer typically has four parts: the copyright symbol, the year of the page's publication, the name of the website's owner, and a statement reserving the rights of the site's owners to the site's content. The last part is optional, although it's encouraged for clarity and completeness.

What copyright disclaimer should I use? ›

"Copyright Disclaimer under Section 107 of the copyright act 1976, allowance is made for fair use for purposes such as criticism, comment, news reporting, scholarship, and research. Fair use is a use permitted by copyright statute that might otherwise be infringing.

How do you write a disclaimer? ›

Disclaimers should be clear, concise, and general. So they should be easy to write. Just specify the limits of your professional responsibility or liability. You can also use a disclaimer generator tool or template to start.

What is the single easiest way to avoid copyright infringement? ›

Tips to Avoid Copyright Infringement

Seek permission from the owner before using a work that isn't yours. Do not rely on the symbol defense; a missing © is not required and will not hold up in a copyright claim. Assume any and all materials found on the internet are copyrighted.

What happens if you are caught using copyrighted material? ›

In general, anyone found guilty of civil copyright infringement may be ordered to pay either actual damages or “statutory” damages affixed at not less than $750 and not more than $30,000 per work infringed. For “willful” infringement, a court may award up to $150,000 per work infringed.

Can I copyright myself? ›

Many wonder, “Can I trademark my face?” Unfortunately, the immediate answer is no. Copyright is only valid for man-made creative ventures. The creative work must be a product of deliberate effort through creativity and conscious choices.

How do you write a copyright disclaimer for fair use? ›

You write a fair use disclaimer by following these three steps: Clearly state that your site may contain copyrighted content not authorized for use by the owner. Explain that your use of copyrighted content falls under the guidelines of fair use. Cite or link to Section 107 of the Copyright Act.

How can I add music to my YouTube video without copyright? ›

All content uploaded to YouTube must abide by YouTube's copyright policies, so the only way to upload music without the audio being muted is to make sure you have the right permissions. Upload music that is free for use or obtain permission from the music's creator to use her track in your video.

How do I upload music to YouTube without copyright? ›

How to know if a song is copyrighted on YouTube?
  1. Check the video description on YouTube. ...
  2. Upload your YouTube video as private or unlisted. ...
  3. Find the copyright owner. ...
  4. Discuss a permission agreement. ...
  5. Create a written permission agreement. ...
  6. Royalty-free music on YouTube. ...
  7. Clipchamp's free non-copyrighted music library.
16 Jun 2022

How do you avoid copyright infringement on cakes? ›

There are a couple ways you can protect yourself against infringing on copyrights:
  1. Get permission first. Some copyright owners will let you copy their characters for free, some will require a license fee, and some won't allow any copying. ...
  2. Use Licensed Figurines. ...
  3. Go Generic or Public Domain.
21 May 2013

Can a cake design be copyrighted? ›

The short and sweet answer is yes. Protection may be available for cake and other baked goods designs in the US under copyright, trademark, trade secret and/or design patent laws.

Can I use a logo on a cake? ›

The definitive answer for cake business owners is No. Not legally. You cannot accept any kind of money or gift for making a cake with any copyrighted character or logo on it.

Can I sell Mickey shaped cookies? ›

Does it violate copyright law if I make a cookie that looks like Mickey Mouse if it is a GIFT for someone? Unless you have been given permission by Disney, it is probably a violation of copyright law. Remember, you can't use someone's trademark if you are going to sell it.

How do I write a copyright disclaimer for music on Facebook? ›

If you post material to Facebook that you've copyrighted (such as a video, logo, or music), make sure to add a copyright disclaimer that has the copyright symbol, the year of the copyright, and the name of the copyright owner.

What is a good copyright disclaimer? ›

The copyright disclaimer typically has four parts: the copyright symbol, the year of the page's publication, the name of the website's owner, and a statement reserving the rights of the site's owners to the site's content. The last part is optional, although it's encouraged for clarity and completeness.

How do I avoid copyright on my website? ›

How to Avoid Copyright Infringement on Your Website
  1. Reproduce a certain work in copies.
  2. Prepare derivative works based upon the work.
  3. Distribute copies of the work to the public.
  4. Perform the work.
  5. Display the copyrighted work.
  6. Or perform the work publicly by means of digital audio transmission.
20 May 2020

How do I get copyright permission for T-shirts? ›

The most common way to obtain the right to use intellectual property material on your T-Shirts is by contacting the copyright owner of said material and negotiating a license. A license from the copyright owner will allow you to use their intellectual property on your t-shirts.

How do I get copyright permission? ›

In general, the permissions process involves a simple five-step procedure:
  1. Determine if permission is needed.
  2. Identify the owner.
  3. Identify the rights needed.
  4. Contact the owner and negotiate whether payment is required.
  5. Get your permission agreement in writing.


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