Copyright Infringement

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.

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OAKTON VA 22124-1530