We get so many questions about the nuances of copyright law that we feel it never hurts to address the basics. While saying “I’ve been ripped off” is a perfectly descriptive term, it is not a legal one.
The Copyright Law classifies what most people call “stealing” as falling into one or more of four categories of infringement(s). There is indeed some overlap and an infringer can be guilty of one or more of the below transgressions. Don’t get confused by the legalese as each and every one of them places the perpetrator squarely on a meat hook. Bottom line – you have a claim worth exploring if a person or company has infringed on your work.
In plain English, an infringement can fall into one or more of the following categories under The Copyright Law:
- Direct – The copyright holder must prove that he or she owns the infringed copyright and that the accused infringer violated one or more of the copyright’s “exclusive rights” (reproduce a work, prepare derivative works based on the original, distribute reproductions, perform the work, display the work, in the case of sound recordings, to perform the work publicly by means of a digital audio transmission). The copyright holder must first prove direct infringement in order to make further claims of contributory or vicarious infringement.
- Contributory - The infringer is liable to the copyright holder if it is proved s/he engaged in personal conduct that encouraged or assisted the infringement. In this type of liability, the infringer must have actual knowledge or “reason to know of the direct infringement.” The infringer must also contribute to the infringement in a material way.
- Vicarious – The copyright holder has to prove that the infringer had the right and ability to supervise the activities that infringed the copyright and had a financial interest in those activities.
- Induced - A person who “intentionally induces” infringement would be liable as if he or she committed the infringement meaning: he or she intentionally aids, abets, induces, or procures infringements. Intent may be shown by acts of the alleged infringer and upon all relevant information especially whether the activity relies on copyright infringement for its commercial viability.
Only if a court – whether by judge or jury – determines that the accused infringer is liable for one or more of the above can the claimant move on to the next phase of the case which is typically trial. At that point the court -by judge or jury – determines what type(s) damages the copyright holder should receive and in what amount(s). The Copyright law gives the copyright holder who has timely registered the choice also known as the ability to “elect” that the award take one or more of the following forms:
- Actual damages, ie. the amount of money the creator would have charged IF it was to have granted a license for the offending uses which may include the infringer’s profits, if there were any.
- Statutory damages, ranging from $750 to $30,000 for each infringing copy. If the copyright holder can prove that the infringement was committed “willfully,” the court has the discretion to increase statutory damages up to $150,000 per infringing copy.
- Attorneys fees incurred by the prevailing party or in some instances, in excess of what the winner actually spent.
That folks, is about as basic a primer on the fundamentals of copyright law as we can author. Each of you has now learned in a few moments what it takes a law professor a few weeks to teach to bright eyed, law students.