|
Note of Importance. Copyright infringement law
is complex, subject to detailed statutes, and has been interpreted by the
courts in almost every aspect of applicability. Only a very broad
brush summary presentation is possible in light of this complexity.
What Are My Copyright Rights and What Is Infringement?
Copyright infringement is the unauthorized exercise of any of the
exclusive bundle of rights of copyright holders specified in Title 17 of
the United States Code (17 USC
106) and (17 USC
106a).
In summary, these rights are (1) reproduction: the right to
reproduce the work in copies; (2) adaptation: the right to prepare
derivative works based upon the copyrighted work; (3) publication:
the right to distribute copies to the public by sale or other transfer of
ownership, or by rental, lease, or lending; (4) performance: to
perform the copyrighted work publicly; (5) display: to display the
work publicly; (6) for sound recordings, to perform the copyrighted work
publicly by means of a digital audio transmission; and (7) for the author
of a work of visual art, the right to claim authorship of that work, to
prevent the use of the author's name for any work that author did not
create, and to prevent any intentional distortion, mutilation, or other
modification of that work which would be prejudicial to the author's honor
or reputation.
- The first three rights extend to every kind of copyrighted work.
They are independent and can generally be characterized as rights of
copying, recording, adaptation, and publishing. A single
act of infringement may violate all of these rights at once, for
example, when a publisher reproduces, adapts, and sells copies of a
person’s copyrighted work as part of a publishing venture.
However, infringement takes place when any one of the rights is
violated: where, for example, a printer reproduces copies without
selling them or a retailer sells copies without having anything to do
with their reproduction.
- The preparation of a derivative work, such as a ballet, pantomime,
or improvised performance, may be an infringement even though nothing
is ever fixed in tangible form. To violate the adaptation right,
the infringing work must incorporate a portion of the copyrighted work
in some form. However, a detailed commentary on a work or a
programmatic musical composition inspired by a novel would not
normally constitute infringements as a derivative work.
- The right of publication makes it an infringement for any
unauthorized public distribution of copies or phonorecords that were
unlawfully made. However, the copyright owner’s rights cease
with respect to a particular copy or phonorecord once he has sold it (17
USC 109).
- The right of display gives owners of copyright in literary, musical,
dramatic, and choreographic works, pantomimes, and pictorial, graphic,
or sculptural works, including the individual images of a motion
picture or other audiovisual work, the exclusive right “to display
the copyrighted work publicly.
Any act by which the initial performance or
display is transmitted, repeated, or made to recur is potentially an
infringement unless it were done privately, such as when done for a
gathering of a family and its social acquaintances, or unless an
insubstantial number of people are involved, such as for routine meetings
of businesses and governmental personnel. However, performances in
“semipublic” places such as clubs, lodges, factories, summer camps,
and schools are “public performances” for infringement purposes.
- The visual art rights created after 1990 last for a term consisting
of the end of the year during which the author dies.
What are the Exceptions to Infringement.
The exclusive bundle of rights in copyright stated in section 106 and
sometimes in section 106a are subject to the limitations in sections --
- 107:
fair use;
- 108:
reproduction by libraries;
- 109:
transfer of particular copy;
- 110:
educational, religious, noncommercial, horticultural fair, promotion
of certain musical retail sales, handicapped, and limited social
function;
- 111:
certain secondary transmissions;
- 112:
transmitting organization copy;
- 113:
certain secondary transmissions;
- 114:
useful articles;
- 115:
independent fixation of other sounds;
- 116:
coin-operated phonorecord players;
- 117:
computer program archival copy;
- 118:
antitrust and royalty agreements;
- 119:
secondary transmission for private home viewing;
- 120:
architectural works;
- 121:
reproduction for people with disabilities; and
- 122:
secondary transmissions by satellite carriers.
The Online Copyright Infringement Liability Limitation Act (OCILLA) 17
U.S.C. 512 insulates an Internet Service Provider from copyright
infringement under certain conditions.
Damages. Sections 502,
503,
504
and 505
of the United States Code provide remedies for copyright
infringement. Actual damages, statutory damages, additional damages
for unreasonably claiming a defense under section 110,
costs and attorney fees may be awarded.
- Actual damages is a sum of the amount lost by the copyright holder
plus the infringer's profits not otherwise accounted for in what is
lost by the copyright holder.
- Statutory damages is a sum as the court considers just, which is in
a range from $200 for proved innocent infringement to $150,000 for
willful infringement and this sum is awardable for each separate
instance of infringement (but not per copy in a single instance of
infringement).
- Additional damages is a sum two times the amount of the license fee
that the proprietor of the establishment concerned should have paid
but did not because he unreasonably claimed that use of a copyrighted
work was exempt for educational purposes under section 110.
- Cost of bringing the suit, including reasonable attorney fees, can
be awarded to the prevailing party in the discretion of the court.
I Want to Sue. An owner or exclusive
licensee of a copyright can sue if the lawsuit is filed within 3 years of
the infringement and if the copyright is federally registered.
Registration of the copyright can follow the act of infringement of a work
without losing the right to certain relief, and a suit can be filed based
on the copyright registration application. However, statutory
damages and attorney fees are only available if the copyright is
registered either before the infringement, or within three months of first
publication of the infringed work. (17 USC
412.)
Is Foreign Infringement Covered?
No. The infringement must take place in the United States.
Other Causes of Action. A copyright
infringement lawsuit may also allege violations of other federal and state
laws. State laws, however, can be preempted if they cover the same
violation as the federal statute, but are not preempted if they add
additional elements to the violation. Federal laws sometimes
violated along with copyright laws relate to design patent infringement,
trademark infringement, and unfair competition under the Lanham Act.
State laws that are sometimes violated along with copyright laws relate to
trademark infringement, trade secret, misappropriation, false advertising,
unfair competition, fraud, breach of contract, interference with contract,
and trespass to chattel.
Is Someone Who
Encourages Infringement Also Liable? Any person who
materially contributes to the infringing activity of another is liable, as
well as anyone who has the authority to control the infringer's acts and
receives a direct financial benefit from the infringement, is potentially
liable for copyright infringement.
Criminal Violation. Willful infringement
of copyright law for commercial advantage is a felony criminal
violation. Willful infringement of copyright law by reproducing or
distributing a copyrighted work (with or without a commercial purpose)
within a 180-day period, whose total value is more than $1,000, is a
felony criminal violation. Note well that even private copying can
be a felony if the accused specifically intended to violate the copyright
law for private financial gain. Financial gain means just about any
benefit as it is defined in section 101
to include "receipt or expectation of receipt, of anything of value,
including the receipt of other copyrighted works.” Penalties
include a fine and 1 to 10 years in prison. Other criminal penalties
are specified, for example, removing a copyright
notice or falsely adding a copyright notice, with fraudulent intent, is
subject to being fined up to $2,500. These criminal offenses are
listed in section 506.
The Digital Millennium Copyright Act (17 USC 1201-1205) also makes it a crime to circumvent, or deal in a
technology that disables, electronic protection systems devised to prevent
copying and distributing digitized material. Here again the
activity must be done willfully for financial gain. Consumers who
circumvent an access code on material they own would not generally be
committing an offense. However, it is a criminal offense for
consumers to purchase software that would breach electronic protection
systems. The penalties for first offenders are fines of $500,000 and
five years in prison. Penalties increase to maximums of $1,000,000
in fines and ten years imprisonment for repeated violations.
What is Required to Show Copyright Infringement.
Direct evidence of copying is the best evidence. However, an
inference of copying may be enough if the infringer had access to
copyrighted work and the infringing work is virtually identical or in some
cases substantially similar to the copyrighted work. Even if copying
was not intended but was the result, there could be grounds for an
injunction, impoundment of the infringing work, destruction of the
infringing work, damages, and fees.
Contact
Attorney Louis Ventre, Jr. for help on copyright registration and on
determining if an infringement is taking place. Also, a referral for
contingent fee attorney representation can be made when infringement is
likely.
Home | How
to Communicate | Email to: lventre@lventre.com | Useful
Links
Client
Inventions | Bio | FAQs | Disclaimers
Search
Click Here to Fill-In a Web Form Email
© 2006 Louis Ventre, Jr.
This file last modified 05/19/20.
This page is https://www.lventre.com/cinfring.html. |