Copyright Infringement and Fair Use

Copyright Infringement

Copyright protects the rights of the author to copy, distribute copies, and publicly perform the copyright protected work.

Copyrights are infringed by actual copying of the protected work. Actual copying is proven by proving access to the copyright protected work as well as substantial similarity. Substantial similarity means that the original creative portions of the protected work and allegedly infringing work are so similar that the similarities could only have resulted from copying. Unlike a patent, copyright does not protect against independent development of a similar work.

Receiving a registration or rejection from the Copyright Office is required before suit can be filed. However, as a practical matter, suing after a rejection would potentially risk an award of attorney fees against the plaintiff in the event a court finds that the work is not eligible for copyright protection. If a work is unregistered, a registration can be obtained quickly through special handling. However, statutory damages and attorney fees are only available for infringement which commences after the effective date of registration, which is backdated to the date on which the last item required for the application is received by the Copyright Office. Infringement of an unregistered work can only be remedied by actual damages, which must be proven, and potentially an injunction.

Music and Movies on the Internet

Owning a physical copy of music or of a motion picture does not entitle anyone to copy and distribute that music. Avoid using websites which distribute infringing copies of music. The copyright for popular music and movies is typically registered, facilitating enforcement against infringers. If you are found to have downloaded or distributed infringing copies of music or movies by the copyright owner or their agent, the cost of settling their infringement claim will greatly exceed the cost of purchasing properly licensed copies.

Photographs on the Internet

The ability to copy a photograph from the Internet does not mean that you are free to use that photograph. Using photographs which are subject to copyright protection on a website or on social media is a common, potentially costly mistake. If you wish to use a photograph, I strongly encourage purchasing the appropriate license to use that photograph prior to making any use of the photograph.

Some copyright enforcement entities utilize software to search the Internet for infringing images, and then send demand letters to the owners of websites using these allegedly infringing images. If you receive such a demand letter, do not ignore it. However, you should also contact me before responding to the demand. A copyright lawyer can respond to the demand in a manner that avoids harmful admissions from you and keeps the communications inadmissible as evidence.

Many demand letters discuss the potential liability for infringing a registered copyright. However, in many cases, the photograph is not registered, significantly reducing both the risk of being sued as well as the potential liability if you are sued. If a registration certificate is provided, that certificate must be examined to ensure that it actually covers the allegedly infringing photograph.

I have experience dealing with these enforcement entities, and am familiar with their tactics. In many cases it is possible to identify and persuade them of weaknesses in their position and to persuade them to drop the issue. However, in some cases, reaching a settlement will be necessary.

Celebrity Photographs

In addition to copyright, depending on the photograph and the intended use of the photograph, the celebrity's right of publicity must be considered.  Obtaining a license to use the celebrity's name and likeness may be necessary.

Fair Use

Fair use is governed by 17 U.S.C. §107, which reads:

“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”

Under the first factor, nonprofit educational uses are more likely to be fair than commercial uses. Additionally, “transformative” uses that change the nature of the work are more likely to be fair. In order to be transformative, the secondary use must not merely supersede the objects of the original creation. Instead, the secondary use must add something new, with a further purpose or different character, so that the first work is altered with new expression, meaning or message.

Under the second factor, facts cannot be protected through copyright. However, the manner in which the facts are expressed is protectable. Factual works therefore are subject to less protection than fictional works.

Under the third factor, even a small portion of the work as a whole can exceed the limits of fair use if that small portion is particularly significant to the work as a whole.

Under the fourth factor, a work which serves a different purpose than the original work, rather than displacing the original work in the marketplace is more likely to be found to be fair use.

The above factors will be weighed differently in different situations, and you should not assume that your use is fair without consulting an attorney familiar with copyright law. Please contact me with your specific questions.