Tips for Avoiding Copyright Infringement
Published: September 29, 2022
Copyright protection automatically attaches to a work when it is created. Specifically, copyright protection attaches to the original, creative work when it is fixed in a tangible medium, such as when it is written, drawn, recorded digitally, or typed electronically. Copyright law “protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.” It also protects images, photos, videos, and other written work, such as blog posts. See here.
“Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed” or described. See here. Further, only a modicum, or small amount, of creativity is required for copyright protection to attach.
Many find it surprising, but there is no requirement to include a copyright notice on a work for the work to be protected by copyright law. The lack of a copyright notice does not give you permission to use the work.
Copyright infringement occurs when a person or company uses another’s copyrighted work without permission. Examples of copyright infringement include the following when done without permission.
- Posting copyrighted images or photos on your website or social media
- Posting a video or video clip that is copyrighted or includes copyrighted songs or other copyrighted material
- Using a copyrighted song, or portion of a song, in a presentation, at an event, on your website, or on social media
- Modifying an image or photo and using it in a presentation, brochure, on your website, or on social media
- Making a copy of a video or audio recording
- Recording a live concert or a presentation at a conference
- Creating merchandise, such as T-shirts, that uses copyrighted images, photos, or text
- Downloading videos or audio from the Internet without permission or payment
This list above includes a few examples but does not include all the various ways that copyrights can be infringed. It is important to remember that use of any music, text, videos, images, or portions thereof, without explicit permission, is usually copyright infringement. While the fair use doctrine excuses some uses of copyrighted material, the fair use exceptions are much narrower than most people understand. For example, many believe that all educational and all non-commercial uses fall under the fair use exception. That is not the case.
Copyright infringement can lead to substantial civil and even criminal penalties. Some examples include the following:
- The copyright owner can recover damages and actual lost profits.
- The copyright owner can recover up to $150,000 per instance for willful infringement.
- Even if the infringement is not willful and no actual damages can be shown, the copyright owner can recover statutory damages from $750 to $30,000 per item of work infringed.
- Criminal penalties can be imposed up to $250,000 in fines per offense and up to five years in jail for willful infringement.
To avoid these civil and criminal penalties, you should discuss your specific use of materials with an intellectual property attorney. You should also keep in mind the following tips to help avoid copyright infringement. However, remember this is not by any means a complete list of measure to avoid copyright infringement.
- If you don’t own the text, image, video, art, etc., do not use it without obtaining written permission. Even if there is no copyright symbol or notice, you still need to obtain written permission to use it. Save the written permission, whether it is an email, letter, license, or other form.
- Do not copy things from the internet or anywhere else for your own use.
- Do not modify things from the internet or anywhere else for your own use.
- Do not assume that the place you found the image, text, music, video, etc., owns the copyright or has permission to use the copyrighted work. Ask who the owner is and obtain permission from the owner of the copyright.
- Document your right to use the work and save the documentation.
- Document any work you create so you can prove it is your work.
- Read any license for a work carefully to ensure that the work can be used commercially. Many licenses that purport to allow free use of a work explicitly exclude use by companies and/or for profit.
Litigation is expensive, so take appropriate measures to avoid copyright infringement. That includes avoiding the many myths circulating that claim exceptions allowing use of copyrighted works. As with most myths, if it sounds too good to be true, it probably is.