Copyright law provides a type of legal protection for original creative work such as music, writing, or photography. Only the owner of the copyright can make copies of the work, sell it, lease it, or publicly display it.
If someone violates these rights, this is known as copyright infringement and a federal lawsuit can be filed against the infringing party. If you are the copyright holder, you may also consider a less resource-intensive method of intervention, such as the use of a cease and desist copyright infringement letter.
This guide will cover the types of infringement, the rights of copyright holders, potential damages, and the use of cease and desist letters in copyright infringement cases.
What is Copyright Infringement?
Copyright infringement is the unauthorized publication of another person’s or company’s protected works. A copyright violation may occur inadvertently or intentionally.
To understand copyright infringement law, we must examine your rights as a copyright holder. Copyright law grants a copyright holder the exclusive rights to:
- Reproduce the work in copies
- Prepare derivative works based upon the work
- Distribute copies of the work to the public by sale or other transfer of ownership
- Distribute copies of the work to the public by rental, lease, or lending
- Display the copyrighted work publicly
- Perform the work publicly
Without ever even knowing it, someone can infringe on your exclusive rights. It’s understandable, as any copyright infringement definition covers many types of protected creative works, including:
Copyright infringement occurs when the exclusive rights of the copyright holder are violated. Whether or not you can pursue legal action over a copyright infringement depends on a wide range of factors. You must be able to prove:
- You are the actual owner of a copyright for the work.
- The copied sections or public displays of your work are protected by copyright.
- The infringer actually copied the work and violated your rights by either directly using your work or publicly displaying work very similar to your own.
Types of Copyright Infringement
Copyright cases come in two types. A primary infringement involves a direct offense. A secondary infringement occurs when someone facilitates another person or group infringing on a copyright.
Primary Copyright Infringement
Primary copyright infringement is a straightforward offense that clearly violates your right as a copyright holder. It includes:
- Making a copy of recorded music
- Lending or displaying the work to the public
- Issuing copies of the original copyright work to others
- Playing, performing, or publicly showing a copyrighted work
Secondary Copyright Infringement
A secondary level of copyright infringement occurs when an infringer is found responsible for knowingly encouraging, facilitating, or profiting from the copyrighted offense. In these cases, a penalty is imposed on someone who does not commit a legal wrong directly, but who promotes the continued illegal use of copy-written materials.
Consequences of Copyright Infringement
A court may institute certain consequences as penalties. The infringing party may face:
- An award of the actual dollar amount of damages
- A return of the amount of the infringer’s profits over and above your losses
- $200 to $150,000 for each offense (higher penalties for willful infringement)
- Copyright statutory damages
- Payment of attorney fees and court costs
Copyright infringement rulings may also lead to criminal penalties, which may include up to five years in prison or fines of up to $250,000 per offense.
Types of Copyright Infringement Damages
Copyright ownership provides you with the exclusive right to protect a broad range of creative works for which infringers must pay damages. Financial damages in copyright infringement cases are commonly awarded under some combination of actual damages, return of infringer profits, and statutory damages.
A court injunction designed to immediately stop the infringing acts from continuing usually occurs at the beginning of a lawsuit. As each offense is a separate claim, this court-enforced measure is meant to curtail the damages committed by the infringer.
Impounding and Disposition of Infringing Articles
Impoundment or seizure of the infringing work may be used as an immediate remedy by collecting all copies or phonorecords claimed to have been made or used in violation of the exclusive right of the copyright owner.
Damages and Profits
Actual damages are often collected in order to compensate you for your losses. These damages consist of the actual financial losses that you can demonstrate you suffered as a result of the infringing activity. The damages are sometimes called compensatory damages because they are meant to compensate you in the event of copyright infringement.
Infringer profits are the damages deemed to have exceeded the amount of profits that you can prove were lost to you as the copyright owner. The difference between the actual damage and the infringer’s profits is awarded to the victim.
Calculating actual damages or defining the infringer’s profits can be difficult. For this reason, statutory damages provide a framework to compensate victims.
- If the infringement was an honest mistake or made innocently, statutory damages awarded may be as little as $200.
- On the other hand, an intentional infringer may have to pay as much as $150,000 for a single infringement of one work.
Costs and Attorney’s Fees
As part of the overall costs in bringing a claim, reasonable attorney’s fees may be awarded. While an award of attorney’s fees is still a matter of the court’s discretion, this practice allows more victims to assert their rights under copyright infringement law.
Examples of Copyright Infringement
Copyright infringement examples can include:
- Recording a film in a movie theater
- Downloading and sharing music or videos without permission
- Using someone else’s copyrighted words or images on a website
- Using copyrighted songs on a website
- Posting a video on a website that features copyrighted words or songs
A&M Records, Inc. v. Napster
One of the most well-known instances of a copyright infringement lawsuit involved the music industry and Napster, which was an online music website that permitted the free downloading and sharing of music files through their network. It was decided that Napster profited at the expense of record companies that could show viable losses.
How To Deal with Copyright Infringement
If someone infringes on your rights, as the copyright holder, you now have three options:
- Send a cease and desist copyright infringement letter
- File a federal complaint with the government office that is charged with pursuing copyright infringement
- File a claim with the newly formed Copyright Claims Board (CCB) which will be available 12/27/21 to streamline the filing process outside of federal court and deal with claims up to $30,000
Whether the lawsuit will be effective and awarded damages depends on whether the alleged infringer can raise one or more legal defenses to the charge. For example, an infringer may contend that the factual work isn’t covered by copyright, that fair use practices permitted it, or that any similarity is coincidental.
Registering Your Copyright
Your materials are copyrighted as soon as you fix your idea into a tangible medium, but registering your copyright helps to protect it. Typing the copyright symbol (©) with the word “Copyright” is just a notice. It does not mean that the work is registered and it is not a substitute for registration.
If your rights to your copyrighted work have been violated and you still have not registered your copyright, you must do so within three months of the offense. Registration improves your chances of succeeding in your claim and proving the extent of your damages.
Send a Cease and Desist Copyright Infringement Letter
Perhaps the most effective method to stop copyright infringement is simply to demand that the infringing party put an end to their practices.
If a person or company is stealing, copying, or imitating your original work or website, you can send a cease and desist copyright infringement letter. This action will direct the infringing party to stop profiting from, claiming credit for, or using your original work without permission.
Submitting a Lawsuit
The FBI has two divisions charged with investigating intellectual property crimes:
- The Cyber Division investigates intellectual property crimes involving all digital and electronic works, including those related to the internet.
- The Financial Institution Fraud Unit investigates all other intellectual property crimes.
There are three ways to file a complaint and begin your lawsuit:
- Contact your local FBI field office
- File online at the Internet Crime Complaint Center
- Report any suspected criminal activity of any nature at https://tips.fbi.gov
Copyright Claims Board (CCB)
The Copyright Claims Board (CCB) is a newly created administrative court within the U.S. Copyright Office that will be available on 12/27/21. The CCB provides a less expensive way to file legal grievances concerning specific copyright infringement claims, counterclaims, and available defenses.
The maximum copyright infringement award is $30,000 with a potential $15,000 in statutory damages even when the copyrighted work is not timely registered.
The CCB process is meant to progress quickly with limited discovery, no formal motion practice, and no in-person hearings. Unlike federal court, all appearances utilizing the CCB will be conducted virtually.