The owner of a copyright has certain rights that are protected by civil and criminal law. For the owner to civilly enforce those rights in federal court, the copyright must be registered with the U.S. Copyright Office before the suit is brought. Criminal copyright infringement is prosecuted by the government while a civil suit is brought by the copyright owner.
Fair Use Exception
Assuming the copyright owner has a valid registered copyright, there still are legal exceptions which allow an image to be copied and used. The Fair Use Exception was created to allow individuals limited use of copyrighted material for commentary, criticism, satire, education or research. Courts will look at several factors to determine if the use was fair, such as the character of the use, factual or fictional nature of the work, if the work has been published, amount of the image that was copied, and any financial effect on the owner of the copyright. If you are merely copying an image for personal use and the image is published, courts will take this into account, but the other factors can be considered too. If you are making money by copying the image, a court is more likely to consider it an infringement. If you have changed the image or added commentary, it is more likely to be considered a fair use.
If the copyright owner has given you permission, like an assignment or license for certain rights, you can copy the image. Copyright owners can give others the right to copy an image for personal use, which is common on some websites.
Civil Infringement Damages
Claiming that you copied an image innocently is not a defense; however, it may be taken into account for damages if you lose an infringement case. If you lose a civil case, damages can include any money lost from the copying of the image, attorney fees and statutory damages, which can be from $200 to $150,000 depending on whether the act is considered willful.
Read More: Forms of Copyright Infringement
Criminal Infringement Damages
Criminal copyright infringement requires the person to willfully copy an image for commercial advantage or financial gain. This is established when the copied image has a reproduction or distribution value of more than $1,000 or was distributed on the Internet and intended for commercial distribution. If found guilty of criminal infringement, you can be punished by imprisonment and fines, which will depend on the amount of copies made and worth of the copied material.
- Cornell University Law School, Legal Information Institute: 17 USC § 504 - Remedies for Infringement: Damages and Profits
- U.S. Copyright Office: Circular 92, Chapter 5, Copyright Infringement and Remedies, Section 506. Criminal Offenses
- Cornell University Law School, Legal Information Institute: 18 USC § 2319 - Criminal Infringement of a Copyright
Craig Straub is a registered patent attorney who has been practicing law and writing about his expertise since 2007. His writing skills were recognized in college when he earned a highly competitive federal grant. Straub holds a Bachelor of Science in chemical engineering from Texas A&M University and graduated magna cum laude with a J.D. in law from California Western School of Law.