What Is Copyright Infringement?

Copyright Infringement Explained

An artist sits on the floor of her studio, working on a painting
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Copyright is a type of legal protection for original work such as writing, music, or photography. Like trademarks and patents, copyrights are a type of property with specific rights. Only the owner of the copyright can reproduce the work, sell it, or publicly display it. If someone violates these rights, which is known as copyright infringement, you can file a lawsuit against them or use a new, easier process.

Definition and Examples of Copyright Infringement

Copyright infringement is violating the intellectual property rights of a copyright holder. The copyright owner holds the exclusive right to use their work, including:

  • Copying the work
  • Adapting, transforming, translating, or creating other works from the original one
  • Distributing the work to the public by sale or other methods
  • Performing the work in public, including digital audio transmission
  • Publicly displaying the work

The copyright owner can also allow others to use their work. If you are not the copyright holder and you don’t have their permission to do one of the above activities, you may be committing copyright infringement.

Copyrights are protected by the U.S. copyright law (Title 37 of the U.S. Code of Federal Regulations), administered by the U.S. Copyright Office. 

  • Alternate name: Copyright violation

Why Kinds of Work Are Eligible for Copyright Protection?

To be protected against infringement, the work must be:

  • An “original work of authorship” independently created by a human
  • “Fixed” in a published or distributed form 
  • At least minimally creative

Examples of copyrightable works include books, music, movies, plays, photos, website content, and sound recordings.

Examples of Copyright Violation Lawsuits

In Rogers v. Koons (1992), Art Rogers owned a copyrighted photograph called “Puppies.” Inspired by the photograph, Jeff Koons created a sculpture called “String of Puppies,” which he displayed at a gallery. He also sold copies to collectors. When Rogers sued him for copyright infringement, Koons claimed that his work wasn’t violating the copyright because it was a parody and social commentary. The 2nd U.S. Circuit Court of Appeals denied the defense, saying the copies were made in “bad faith, primarily for profit-making motives.” 

The case of Fairey v. Associated Press (AP) involved a photo of former president Barack Obama. Artist Shepard Fairey created the ubiquitous “HOPE” poster for Obama’s first presidential campaign in 2008. The AP claimed one of its freelancers had taken the photo Fairey used for the poster, and the organization wanted to be paid for its use. Fairey claimed fair use. The case was settled privately, with the two parties splitting the profits.

In a high-profile musical controversy, Marvin Gaye’s heirs thought his 1977 song “Got To Give It Up,” and Robin Thicke’s 2013 hit “Blurred Lines” sounded suspiciously similar. In 2018, a panel of federal judges agreed with the 2015 decision of a U.S. District Court jury that “Blurred Lines” infringed on Gaye’s copyright. 

How Does Copyright Infringement Work? 

If you think your rights to your copyrighted work have been violated, register the copyright. Registration helps you gain an advantage in court and prove your damages. 

To claim copyright infringement, you must be able to show that:

  • You are the owner of a valid copyright. 
  • The defendant actually copied the work, either by direct evidence or because the work has a striking similarity to your own work.
  • The copied sections of the work are protected by copyright.

New Copyright Claims Process

Filing a claim of copyright infringement usually requires taking someone to federal court, a lengthy and costly process. But the Copyright Office has a new small- claims process as part of the Copyright Alternative in Small-Claims Enforcement (CASE) Act (2019-2020). A Copyright Claims Board (CCB) is being set up to hear “low financial valued” disputes, and is expected to be operational by the end of 2021.  The CCB process can only be used for cases in which monetary damages are less than $30,000. 

Defenses Against a Claim of Copyright Infringement

Three common defenses are used to counter a copyright infringement claim:

  • The work isn’t covered by copyright, usually because it is factual, with no creative or expressive element.
  • The work was independently created and any similarity to the plaintiff’s work is coincidental.
  • The work is permitted by fair use. Fair use allows someone to use limited parts of a work for news reporting, commentary, criticism, or scholarly reports. Whether something is fair use is decided in court on a case-by-case basis. 

Penalties for Copyright Infringement

If a copyright infringement claim is upheld by the court, the infringer may face one or more of these penalties: 

  • The actual dollar amount of damages and profits
  • From $200 to $150,000 for each work infringed upon, with higher penalties for willful infringement
  • Payment of all attorney fees and court costs
  • A court injunction to stop the infringing acts (sometimes at the beginning of the process)
  • Seizure of the infringing work
  • Criminal penalties, including imprisonment for up to five years and fines of up to $250,000 per offense 

Key Takeaways

  • Copyright infringement is the illegal use of someone else’s copyrighted work. 
  • Registering your copyrighted work can help you succeed in a lawsuit against someone who is infringing on your copyright. 
  • Fair use, or using only a small part of a copyrighted work, is the most common defense against copyright infringement.
  • The Copyright Office is implementing a new, easier, faster copyright infringement claim process for smaller claims.

Copyright Infringement Frequently Asked Questions (FAQs)

Do I have to publish my work to protect it? What if I put the copyright symbol on it?

Your work doesn’t have to be published to be protected. It’s protected the moment it’s created and fixed in a tangible form. Typing the copyright symbol (©) with the word “Copyright” and the date is just a notice; it doesn’t mean the copyright is registered and it’s not a substitute for registration.

What’s the difference between copyright infringement and plagiarism?

Plagiarism is using someone else’s work without giving proper credit. It’s the copying of ideas, while copyright is copying the fixed expression of those ideas. Plagiarism isn’t illegal, but it violates academic norms and principles. 

If you attribute a work to someone else by citing the source, you can avoid a charge of plagiarism, but you can’t attribute a work to avoid a claim of copyright infringement. 

Where can I get help registering a copyright or filing a claim of infringement? 

Start with this information from the U.S. Copyright Office on registering your copyright and what to do if your copyright has been infringed. You may be able to register your copyright yourself, but it’s best to get a licensed intellectual property attorney to help you through the infringement claim process.