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.
#1 by Maryann Morabito on June 1, 2014 - 6:57 am
Copyright is very confusing and easily misunderstood. I remember once reading that if a design, idea, etc. were signed and dated then by that act alone, the article, artifact, picture would be copyrighted. Is that sill true?
Maryann
#2 by Jack and Ed on June 2, 2014 - 3:05 pm
Maryann- Another urban myth. You have the copyright as soon as you create an original, creative work. To get the full benefit you need to register your copyright at the copyright office. But some things, like ideas, titles, etc. are not copyrightable. Signing a work does not offer you any more protection than if you didn’t sign it.
#3 by JUDI ROSELLI on June 6, 2014 - 3:38 pm
I post my photos on my see.me site. This site is available to all photographers and artists to display their work, enter contests and sell prints. It is also a secure site, making it impossible for your work to be copied. Of course, I sign my photos by adding text from my editing software, however if someone hovers over your photo the image turns white. This prevents copying of images. One reason I do not have a facebook or personal website is for that technology.
#4 by Theo Lübbe on July 3, 2014 - 2:22 am
Hi,
I’m curious as to what measures non-US citizens have with regards to the registration of and enforcement of copyright claims for works not produced in the United States.
As a resident of South Africa, I primarily produce my works (photographic) within South Africa, and intend on traveling out of South Africa and producing photographic works in other countries. By South African copyright laws, there is no facility for the registration of copyrighted works here beyond placing a copyright notice (© Theo Lübbe YYYY All Rights Reserved – as example) on a photographic work, and there are no courses of action for a copyright holder other than to hire a lawyer to pursue a claim, with attorney and litigation fees being the responsibility of the copyright holder.
As you can imagine, this could make litigation of offenders in countries which are not South Africa to be somewhat expensive, to the point of being prohibitively expensive.
By my understanding of US Copyright Law so far, I could only register with the US Copyright Office on the assumption I am a US citizen, and only works produced in a country which the US has the appropriate treaties with. In South Africa’s case, circular 38 states the following:
“South Africa ·
Bilateral July 1, 1924;
Berne (Brussels) Oct. 3, 1928;
WTO Jan. 1, 1995”
So my question is this;
Is it possible for me, as a South African resident and citizen, to register my works with the US Copyright Office, and if yes, would this provide me with the same legal benefits afforded to US citizens by way of attorney and litigation fees being paid for should I need to make a claim against an infringing party located either within the USA or a country with which the USA has treaties?
Continuing on the assumption that the aforementioned would apply, what would the requirements be of me as the copyright holder in terms of attending court proceedings should these arise? Would travel costs, if applicable, be covered or claimable? Are proceedings against infringing parties located in treaty countries carried out in the USA? Would myself and the infringing parties be required to travel to the USA, myself to the country the infringing party is located in, or the infringing party to South Africa?
I watched the B&H lecture you guys recorded a week or two ago, and while very informative and much appreciated, it left me with these questions and concerns. Right now my primary course of action against infringing parties I can identify as being owned and operated by US-located parties and/or those whose hosting is located in the USA is to make use of the DMCA filing system, which has thus far been a successful course of action for having infringing works taken down.
It has not, however, provided me with any punitive damages, and I am confident that some of these infringements have derived profits from the use of my works either by way of ad revenue, ‘value-added services’ such as a premium membership or pay-to-download system to obtain higher resolution versions of my works or even direct commercial usage of my works.
What can non-US citizens like me do to receive what’s due to us?
Thanks for your time,
Theo
#5 by Michael on July 25, 2014 - 1:12 pm
I have a question on damages. When you say “per infringing copy” what does that mean? Is it per stolen photograph, or per copy of the magazine that it was printed in?
Thanks,
Michael
#6 by Jack and Ed on July 31, 2014 - 2:02 pm
Michael, It’s per infringement. Printed in a magazine, it’s generally one infringement, but the number printed is considered. If it runs in the magazine, and in an ad for that issue with the photo, or any other additional uses, it’s another infringement each time it’s used again. But the problem in answering your question is that each case is very fact specific to that case. There may be a case where something is made and each copy of that merchandise is an additional infringement. Like 10 billboards. It could be one infringement or ten infringements. If something is produced and 20 are made, as opposed to 200,000, those numbers would be looked at by a judge and jury even if counted as one infringement. Sorry for sounding confusing, but it can be confusing and as stated, each one is case and fact specific. Hope that helps.
Jack