Copyright Infringement

Copyright protection even extends to “derivative works” based on the original work. A “derivative work” is one that contains portions of a work already protected by copyright. It might be characterized as a “new version,” or be something based on the original work, such as a play based upon a movie, a translation into another language, or a remix of a musical recording.

Sometimes a derivative work is different enough to be a new creation, eligible for copyright protection in it’s own right. Simply making minor changes to an original work isn’t enough to qualify as a new work under copyright law, and would be considered an infringement of the original copyrighted work. Bottom line: Copying someone else’s work

A copyright holder can grant permission — called a “license” — to make a derivative work, but any other derivative work — unless covered by the limited “fair use” exception is likely to be viewed as an infringement of the copyright owner’s rights. The “fair use” exception involves many factors, and I wouldn’t recommend that anyone without an intimate knowledge of copyright law attempt to rely upon that exception to protect themselves against an accusation of copyright infringement, particularly if the use has any commercial gain for the “fair use” claimant.

So what are your remedies if someone is using your work without permission? Well, you should ask them to stop, and you can also ask them for damages. A copyright owner can ask for both actual damages and statutory damages for the copyright infringement. Actual damages would be the amount of money that the copyright holder lost because someone was selling their copyrighted material, plus any profits made by the infringer.

Because actual damages can be difficult to measure, the law provides for an alternative measure of damages called “statutory damages.” To be eligible for statutory damages, the copyright holder must have registered their copyright with the Copyright Office within 3 months of the publication of the work. The statutory damage provision allows a court to set damages in an amount of between $750 and $30,000 for each work infringed. If an infringement is found to be “willful,” then the amount of statutory damages can be increased up to $150,000. If an infringement is found to be “innocent,” then the court has the power to reduce the statutory damages to $200. The victorious party in a copyright infringement lawsuit also can request attorneys’ fees and other expenses involved in filing the lawsuit. Again, to be eligible for attorneys’ fees and statutory damages, the owner of the copyright must have registered the work with the United States Copyright Office within 3 months of the creation of the work. No registration? You can still get actual damages, but you must prove them.

Be mindful of the statute of limitations for copyright infringement lawsuits: If you want to file a lawsuit and request damages for the copyright infringement, you have to sue within 3 years of the infringement.

Lastly, there is no such thing as an “innocent infringement.” Copyright infringement is kind of like speeding, where an intent to speed doesn’t need to be proven in order to find you guilty. You were speeding, and that’s enough to convict you of the offense. It’s the same way with copyrights: The copyright holder doesn’t need to prove that you had evil intent when you copied her work; she only needs to prove that you made an unauthorized copy. 

In extraordinary cases, there can even be criminal sanctions for copyright infringement. The United States government can and does prosecute copyright violations, usually in cases where the damage is large relative to the infringer’s assets, meaning that a civil suit would be an ineffective remedy to address the harm to the victim. Criminal violations under the copyright laws include things like creating false copyright notices, fraudulently removing copyright notices, or making a false statement on a copyright application. Criminal copyright prosecutions can result in fines of up to $250,000 and five years in prison.

If you’ve been accused of copyright infringement, or have received a demand letter, you should contact a copyright attorney to evaluate your case. There are many instances where “copyright trolls” send intimidating letters demanding payment for the use of images of which they falsely claim ownership. There are also instances where legitimate copyright infringement “cease and desist” letters and damage demands are ignored by the recipient, leading to expensive copyright infringement lawsuits.