Suppose you’re designing some new materials for your business like a website or a promotional brochure. There are some nice illustrations on the web you want to include, along with text from a glowing customer review and a photo from the local newspaper of your grand opening. Can you freely use these materials? Or would using them be infringing on someone’s copyright?
It’s important to understand what constitutes a copyright violation, so you can avoid legal problems. Use of materials you don’t clearly own can sometimes be a murky legal area, but some copyright infringement examples should help to sort out what’s permissible and what isn’t.
A Bit of Background on Copyright
As the Founding Fathers were debating what the new American government would look like, protecting the copyright of authors was so important that they wrote it into the very first article of the Constitution back in 1787. Congress gave it a high priority as well and in its first session, passed the Copyright Act of 1790. Copyright protection had earlier been well-established in English law. Now works created in the United States were similarly protected by copyright.
Copyright granted sole ownership of a creative work to the original author. Initially, copyright protection was fairly narrow, applying only to written works and protecting them for a period of 14 years. After that time, protection would lapse, and anyone could then use the written material.
Expansion of Copyright Protections
Both the scope and timing of copyright has expanded enormously since those early times. Almost all creative works are now protected by copyright, including books, poems, drawings, paintings, photographs, sculpture and music. Even computer code is protected. Copyright extends for 70 years beyond the life of the author, so that modern copyrighted works can be protected for a century or more before the protection eventually expires.
Copyright is a form of legal protection for what is known as intellectual property. Other types of intellectual property include inventions and designs, protected by patents, and words and designs that identify brands, commercial goods and services, protected under trademark law.
From Article I of the Constitution: The Congress shall have power...To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.
What Is Copyright Infringement?
As soon as an author (the term is used broadly, to refer to writers, photographers, musicians, and so on) creates a work in concrete form, that work is copyrighted. The work must be in concrete form such as on paper or in electronic format, rather than simply in the author’s head. But once created, it’s protected. The copyright belongs to the author unless a prior agreement exists that transfers the right. For example, when a photograph is made by a company employee, it could well be the company, rather than the individual photographer, that owns the copyright.
Although there are some exceptions, that will be described below, the general rule of thumb is very simple: if you use copyrighted material without permission, you are probably committing infringement and may be subject to financial penalties and legal entanglements.
Penalties for Infringement
The fines for infringement can be pretty steep, ranging up to $250,000 per incident for really egregious violations plus additional money for lost revenues or other damage to the copyright-holder. Although most infringement is handled as a civil matter (subject to a lawsuit), some copyright violations are handled criminally and can lead to jail time.
Even in the absence of monetary penalties, infringement can lead to some big headaches for your business. You may receive a dreaded “cease and desist” letter that claims copyright infringement and demands your company stop the use of the offending materials and make restitution to the owner of the copyright. In that case, you can easily find yourself in the midst of a protracted legal proceeding that can eat up your time and funds and pose a threat to your firm’s reputation.
Examples of Copyright Infringement
Several copyright infringement cases will give you a feel for how this situations can play out.
Statue of Liberty Case: In a particularly embarrassing case of infringement (Davidson v. United States, 2018), the U.S. Postal Service was found to have infringed on the copyright of an artist who had sculpted a duplicate of the Statue of Liberty as a prop for a Las Vegas hotel. The Post Office used the image on stamp in the mistaken belief that it was an image of the original statue, rather than a remake. The courts found the Post Office liable for infringement and fined the government several million dollars.
Music Infringement: The well known musicians, Pharrell Williams and Robin Thicke, were involved in an extended copyright dispute with the estate of Marvin Gaye for similarities between the Williams-Thicke hit, “Blurred Lines”, and Gaye’s earlier hit, “Got to Give It Up”. The courts found that the two tunes were similar enough that the more recent piece of music did, in fact, constitute copyright infringement against Gaye's earlier work.
Sweat of the Brow: One the other hand, a famous copyright case established the “sweat of the brow” doctrine, a concept that which holds that works must be creative to be protected by copyright and that merely putting effort into a work was not sufficient. The case revolved around copying the content of a telephone directory, a work that clearly took effort on the part of the original creation, but that was not deemed to be creative and, hence, not covered by copyright.
File Sharing: Some copyright-holding groups like the Recording Industry Association of America have been particularly active in extending the reach of copyright protections to minimize illegal file sharing of music, a practice considered a form of internet piracy. RIAA sends out thousands of copyright infringement notices each year, often to college students, to let them know the students are in violation of copyright law by sharing music files over peer-to-peer networks. RIAA sometimes works directly with universities to block student access to such networks until the file sharing ceases, and have taken some students to court.
When Can You Use Copyrighted Materials?
There are two situations when you can safely use copyrighted material, and a third situation when you can sort-of safely use it:
You can freely use copyrighted material when you are the copyright holder. It’s yours, and you can do with it what you will. While this may seem to be stating the obvious, ownership of a copyright often gets muddied, making it unclear who has unrestricted right to the material. This happens frequently when one person creates a work for another. If you hire a writer to produce copy for your website or a photographer to take pictures of your products, it’s essential to have a clear understanding of who will own the copyright to the works being created. This is ordinarily handled through the language of the contract you enter into with the work’s creator.
You can make use of copyrighted material if the copyright owner grants permission to do so. If you want to use a piece of popular music in a video you’re creating, you first need to have permission from whoever owns the music. This is typically handled through a licensing arrangement that involves paying a fee.
Many of the images and works you find online include permission statements with the work. Some images, for example, can be used freely, others require that you include attribution or an active link back to the original work, while others are available for non-commercial uses, such as an academic paper, but do not include permission for commercial use. Be sure to understand the uses and limits of anything you glean from the internet. If there is no permission statement, it’s best to assume full copyright protection applies.
The third allowable use of copyrighted materials is the concept known as fair use. While it is based on a more-or-less common sense notion, it is also rather vague as to what uses are legally fair and what would be considered excessive. For that reason, make use of fair use exceptions with caution.
In general, fair use involves a use of a small amount of copyrighted material in a manner that does no harm to the copyright owner. For example, a student writing a paper for school and quoting a small excerpt from a published book would, presumably, be doing no harm to the copyright owner. The small excerpt would be considered fair use. Use of a small thumbnail size image of a copyrighted photography also generally falls into the category of fair use.
Unfortunately, there is no clear cut boundary between uses that are acceptable and not acceptable. If an author contests your use of material that you consider minor, the matter can still end up in dispute and, possibly, in court even if the ultimate result is a court decision that your use is, indeed, a fair use.
Is Everything Copyright-Protected?
If you want to copy a chunk of text from Huckleberry Finn, you’re in safe territory. Mark Twain’s copyright on the work has long since expired. The same holds true with Matthew Brady’s Civil War era photographs or any other work created in the 19th century or earlier. Whatever copyright may have existed at one point is now expired and the works have entered public domain meaning anyone can make use of them. As a matter of fact, any work created prior to 1923 is also in the public domain and free for you to use.
Works created by the U.S. government are also free of copyright and - hence - they're in the public domain. You can find some incredible photographs on federal government websites (check out NASA and the National Park Service, for example) and these are free for anyone to use without restriction (unless the material itself was created by a non-government employee, in which case it usually carries a copyright notice).
Some types of materials are not protected by copyright. Names and small phrases are generally not covered, nor are purely descriptive items like a list of presidents or state capitals, or a simple recipe or set of instructions. As noted earlier, some creators willingly waive copyright and grant permission for their materials to be used. These are also freely available, under any permission terms that the creators of the material have stipulated.
Copyright is automatic and is granted as soon as you create a work in concrete form. It is still useful, however, to attach a copyright symbol ( c-in-a-circle, © ) or a statement to your work to confirm its protected status. You can also register a work with the U.S. Copyright Office to create an official record of copyright for an added amount of legal protection.
- US Copyright Office: What is Copyright?
- Kent State University: CIVIL AND CRIMINAL PENALTIES FOR VIOLATION OF FEDERAL COPYRIGHT LAWS
- Copyright.com: Copyright Law in 2018: Top 10 Court Cases
- American Bar Association: Blurring Lines? The Practical Implications of Williams v. Bridgeport Music
- Pixsy: The 10 Most Famous Copyright Cases In Photography
- US Courts: Davidson v United States copyright case