by Intellectual Property Attorney Bill Honaker, the IP Guy
Copyright infringement occurs when you copy another’s creative work. Copyright law protects original creative works that can be reproduced or copied. A few examples of creative works that can be protected are images, videos, paintings, sculptures, books, articles, music, computer programs, and architectural drawings.
The easiest way to avoid infringement is don’t copy. Easy to say, but not always easy to do. Copyrights can be tricky and problems can just appear.
Damages Can be Huge
The consequences of Copyright Infringement can be devastating. The copyright owner is entitled to:
- An injunction against further infringement.
- Actual damages suffered by the copyright owner. And,
- Your profits that exceed actual damages.
But, since actual damages can be difficult to prove, statutory damages are available. Statutory damages include an award of $750 to $30,000 per infringement, and up to $150,000 for willful infringement. The successful party can also recover attorney’s fees. The amounts are at the discretion of the court, but most courts dislike copying, and award accordingly.
Avoid the Easy Ones:
Copying images from the Internet is copyright infringement. You cannot copy them just because they are on the Internet and it’s easy, or because they don’t have a copyright notice, or because there’s no warning. These are just poor excuses, and none of these are defenses to copyright infringement.
If you copy you are highly likely to get caught. There are companies that search the Internet 24/7 to find you. An example is Pixsy, which allows image owners to upload their works into a database. It then searches the Internet with an advanced image scanner and AI to find matches, and then reports them to the image owner. Pixsy then helps the image owner collect damages through an international team of legal partners.
Don’t be misled by so-called free images, they may not be completely free. Creative Commons is an example of a free site offering clip images. But many images have restrictions on their use. A common one is the requirement of attribution, by giving the author recognition. If you don’t, you may be infringing. Just because an image is in the Public Domain, doesn’t mean you can use it.
You can license images for use. This is basically what you do when you subscribe to a service such as Getty Images. But you have to read the license and understand what restrictions apply to your particular use. It you don’t abide by the restrictions, you can be in breach of the license and be infringing the copyright.
A word to the wise, keep a copy of the license agreement in a secure place as long as you’re using the image. It’s up to you to prove you are licensed. Those searching for infringers do not check for a license before accusing you of infringement. It is your responsibility to show you have a license. If you can’t, they will demand damages.
Other Easy Ones to Avoid:
Copying videos, music or articles is copyright infringement. The same comments that apply to images apply to each of these as well.
The Really Tough One: Copyrights within Copyrights That Sneak up on You.
Mercedes Benz is dealing with this problem. Recently they photographed their G500 luxury SUV in Detroit, in front of murals painted on buildings by four different artists, and posted the pictures on Instagram. Taking your own pictures is not copyright infringement, but including the artwork of others in those pictures can be. The artists approached Mercedes Benz requesting damages for use of their art work in the advertisements.
Mercedes Benz took the offensive and asked a Federal Judge to declare that there was no infringement. It’s to early to know what the court will decide, but GM faced a similar suit last year and lost. GM decided to settle its dispute.
The United States Postal Service
Copyrights within copyrights caught the United States Postal Service, twice! In 2003, the USPS released the Korean War Memorial Forever Stamp. They took a license from John Alli, the photographer. Mr. Alli was walking on the mall in DC on a cold Sunday morning after a big snow. He came upon the Korean War Veterans Memorial covered in snow and snapped the picture. No question he had the copyright, and the Postal Service was correct in taking a license to use his photograph.
But after the stamp was released the US postal service was sued by Frank Gaylord, the artist who created the sculptures in the photograph. The Postal Service didn’t get a license from him. The Court ordered the Postal Service to pay more than $500,000 to the copyright holder Mr. Gaylord for infringing his copyright. Ouch!
But wait, it gets worse.
In 2010, the USPS released the Lady Liberty stamp. They used a photograph of the face of the Statue of Liberty. They paid a license fee to Raimund Linke, the photographer. One can only assume they thought the copyright on the Statue of Liberty had expired. The one in New York had, but this Lady Liberty was in Las Vegas! This copyrighted work was sculpted by Robert Davidson. He sued and was awarded more than $3.5 million. Double Ouch!
Copyrights can be very tricky. With most, you can easily avoid problems by making sure you have the right to use them. Make sure free means free. If there is a license or statement regarding the right to use or restrictions on use, copy it, keep it, and follow it. Other copyrights, especially copyrights within copyrights, can create serious problems. You have to be very careful.
About the Author:
Bill Honaker, “The IP Guy” is a former USPTO Examiner, a partner with Dickinson-Wright, and author of the forthcoming book, Invisible Assets – How to Maximize the Hidden Value in Your Business. To download a sample chapter, click here.