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What is copyright infringement & how to protect your small business

What is copyright infringement? How do you keep your small business from infringing on someone else’s intellectual property rights?

Perhaps even more importantly, what rights do you have to protect your own materials, ideas, or products?

Answering those questions — as well as guiding you to multiple resources for public domain and creative commons — is precisely what this article is all about.

Copyrights: A short definition

Copyright is an intellectual property right that protects “original works of authorship” under the federal Copyright Act. Types of work protected include songs, writings, works of art, dramatic works, choreography, motion pictures, sound recordings, architectural works, and some computer programs.

Copyright owners typically benefit from copyright protection in their exclusive rights to reproduce, adapt, and distribute copies of the protected work.

What is copyright infringement?

Copyright infringement is the legal term used to describe an act that violates a copyright owner’s rights protected by the copyright. It occurs when someone exercises one of the copyright owner’s exclusive rights protected by the copyright without the owner’s permission.

For example, if you operate a sound engineering business that develops original sound clips, you have an exclusive right to reproduce and sell the original sound clips you create. If you hear one of your sound clips on a commercial or radio broadcast and you did not grant permission to play your clip, you may bring an action for copyright infringement.

The two main types of copyright infringement are direct infringement and indirect infringement.

Direct infringement

Direct copyright infringement occurs when an original work is validly protected by a copyright, and the offender copies the work.

If you write a blog post that is validly protected by copyright law, and a magazine publishes your post in their print magazine without your permission, the magazine has directly infringed on your copyright.

Indirect infringement

Indirect copyright infringement occurs when a controlling or influencing party, benefits or contributes to the infringement.

If you create a copyright-protected short film and find that a YouTube user copies your film and uploads it to YouTube without your permission, YouTube might be an indirect infringer because it benefits from the views of your film on its platform.

Copyright infringement examples

In the digital media age, there’s no shortage of high profile copyright battles. The Marvin Gaye family copyright battle against Robin Thicke and Pharrell Williams over stylistic elements used in Thicke and WilliamsBlurred Lines song kept the music industry on its toes for more than three years.

Streaming services such as Pandora and Spotify have been fighting copyright infringement cases since their inception. Massive legal fees and failed negotiations between copyright owners and new platforms have bankrupted certain streaming services like Grooveshark.

Don’t allow yourself to think that copyright infringement cases are limited to the rich and famous, or cutting-edge technology companies pushing legal boundaries to introduce new distribution platforms.

It’s pretty simple to land in a copyright infringement case, even if your intent is pure and you aren’t looking to push any legal boundaries with your product or service. Business advertising is a common basis for copyright infringement cases. If you’ve published an ad that includes background music, can you answer a simple question: did you have permission to use the background music?

Did you download it from an online music library? If so, did the music library provider secure rights for you to use the music in your advertisement?

Perhaps you hired a band to produce the music, or you developed it in-house. In this case, did you conduct any due diligence to ensure that your original work doesn’t actually infringe on somebody else’s protected work? Think back to the Blurred Lines controversy. Thicke and Williams didn’t copy Gaye’s work verbatim, they used “elements” of Gaye’s song and the court sided with Marvin Gaye’s family.

Have you ever printed off pages from a business book to help train your team? If so, did you ask for permission to print and use those bits? Do you run a fitness facility or a restaurant and play music in the background? Where is the music coming from? If you haven’t paid a rights collective for permission to play your favorite playlist, you may be infringing on the copyright owner’s exclusive rights.

Does minorcopyright infringement really matter to your business?

Background music and training materials may seem like minor violations that shouldn’t impact your business much if you get caught. But, minor copyright infringement claims add up to major profits for so-called copyright trolls.

Copyright trolls are typically lawyers or opportunists who partner with lawyers, who buy up large amounts of cheap, copyrighted material and scour the internet and other media for potential copyright infringements. These trolls don’t much care for their copyrighted material the way Marvin Gaye or musical artists fighting with Spotify care for their art. Instead, they want quick, small settlements from potential infringers.

In the case of The Content Factory , a digital marketing agency, a Copyright troll sued the company for its use of a low-quality photo of Omaha, Nebraska. The lawyer demanded $8,000, but settled for $3,000 after some negotiation. This won’t grab headlines like the multi-billion dollar copyright dispute between tech juggernauts Google and Oracle, but the demand is certainly enough to sink a small business.

Images used in advertising can land your business in infringement territory, but don’t forget about other areas of exposure. If you’ve used sound clips from online audio libraries, many of the libraries require you as the user to apply for permission to use copyrighted material.

Social media is another hotspot for copyright infringement.

Naturally, you want to post pictures and videos of your customers using and enjoying your products. But, do you have permission to do so? The burden is on you and your business to get permission, and your customers might want compensation for your distribution of their protected work.

Minor infringement is still infringement, and the costs add up quickly.

Understanding intellectual property law and protections

Intellectual property law is a complicated world to navigate. Some intellectual property rights are created and protected without any formal action taken by the inventor or creator. This is the case with copyright law.

Copyrights are first protected by the US Constitution, and more specifically in the Copyright Act. US Copyrights are also protected and enforceable in foreign jurisdictions through international copyright treaties.

To qualify for copyright protection, a work must meet two requirements:

  • Originality
  • Fixation

A creator meets the originality requirement if the work is independently created by the author and includes some minimal level of creativity. The originality bar is pretty simple to pass.

For legal purposes, original does not mean novel or unique. In fact, works can still be original if they are identical to other works as long as it is not directly copied from the other work.

Creativity does not require any level of artistic achievement or ability, nor does it require a certain amount of energy or time to create a work. However, creators cannot receive protection for single words, short phrases, book titles, slogans, typefaces, and other simple works that aren’t considered as meeting a minimal level of creativity.

Once a creator meets the originality requirement, the work must be “fixed in any tangible medium of expression” to meet the fixation requirement.

This means that the creator must capture it in some form such as ink and paper, paint on canvas, sculpture, film, computer drive, electronic media, video or audio files. The fixation must be achieved by the creator or with the creator’s permission.

Once the originality bar has been met, and the work has been fixed as required by copyright law, the creator earns copyright protection without any other action needed. Generally speaking, copyright protection lasts for the life of the creator plus seventy years. Exceptions to this rule apply in the circumstances of joint authorship and works made for hire.

While creators need not take any formal action to receive copyright protection, some formal actions can be taken that benefit the copyright owner. Legal formalities include:

  • Publication
  • Notice
  • Registration
  • Deposit

Publication occurs when a copyright owner distributes copies of the copyrighted work by selling, leasing, or some other method. Publication does not add copyright protection, but it may affect the duration of copyright protection.

Notice occurs when the copyright owner includes a copyright symbol — © — the year of first publication and the name of the copyright owner when displaying the work. Notice helps limit the defenses of copyright infringers.

Registration is the formal process of registering a copyright with the US Copyright Office. Registration is not required to gain copyright protection, but it helps limit defenses of copyright infringers, and copyright owners need to register their copyright before suing another party for infringement.

If you register, you must deposit a copy of the copyrighted work with the US Library of Congress. However, copyright owners may deposit the work with the Library of Congress without formally registering the copyright.

Registering a copyright

Although not required to gain copyright protection of your works, you can benefit from copyright registration.

First, if you want to sue for copyright infringement, you must register your copyright first. Second, the damages you collect in an infringement action are greater if you register your copyright before the infringement case begins.

Third, if you register your work within five years of its initial publication, the registration is prima facie (i.e. established fact) evidence of your copyright’s validity. Fourth, you can share the recorded copyright with US Customs to stop the importation of infringing copies of your copyright.

Finally, you can limit the defenses available to infringers in a copyright dispute.

If these copyright registration benefits compel you to register, you start the process at the US Copyright Office’s Registration Portal. Through the portal, you can register your copyrighted work, or preregister unfinished work if you meet certain requirements.

The Copyright Office highly recommends registering through the Online Registration portal and depositing a physical copy if available.

Most web-based claims that do not require correspondence between the copyright owner and the Copyright Office take between one and six months to process. Mail-based claims that do not require correspondence between the copyright owner and the Copyright office take between one and sixteen months to process.

If your registration requires additional correspondence with the Copyright Office, the processing takes longer.

Registering a copyright includes:

  • Registering with eCO
  • Completing a Copyright Application
  • Submitting a filing fee
  • Depositing an electronic and/or physical copy
  • Corresponding with the Copyright Office, if necessary
  • Receiving your certificate of registration

Registering with eCO

eCO is the Copyright Office’s Registration Portal. Before you can submit an application or upload any documentation, you must create an eCO account. Through eCO, you can register a work, preregister a work, and submit electronic deposits.

Completing a Copyright Application

To start the Copyright Application, you first select the type of work that best describes the work you are registering. Current options include

  • Non-dramatic literary works: novels, poems, computer programs, etc.
  • Visuals: pictorial, graphical, or sculptural works
  • Serials: journals, periodicals, proceedings, etc.
  • Performing arts: musical, dramatic, or choreographed works
  • Sound recordings: fixed musical, vocalizations, or other sounds

Based on your type of work, you will be required to answer certain questions. In all cases, you’ll need to provide:

  • Title of the work
  • Author(s) and contact information
  • Author(s) role in creation
  • Creation date
  • Publication date (if published)
  • Name and address of copyright claimant (in the case that the author has transferred ownership)
  • Derivative works or compilations (if applicable)
  • Payment type
  • Address for certificate

Filing fees

The current copyright registration fees are:

  • Web-based, Single Application (single author, same claimant, one work, not for hire): $35
  • Web-based, Standard Application (all forms other than Single Application): $55
  • Paper, mail applications: $85

You can file a number of other forms with the US Copyright Office that may apply to your copyright (e.g., corrections, renewals, group registrations, preregistrations, etc.) and prices for such forms vary. For a complete list, review the Copyright Office Circular 4.

Depositing a copy

Your registration will require at least one deposit copy of your work. This may include an electronic and/or physical copy of your work depending on the circumstances.

Once you submit your deposit, it becomes part of the public record which can be viewed by members of the public.

Correspondence with the US Copyright Office

Hopefully, your only correspondence with the US Copyright Office is through email confirmation of receipt of your application and then issuance of your certificate of registration.

However, if further correspondence is needed, or your application is rejected, the Copyright Office will instruct you on how to properly correspond using the contact information you provide on the application.

Receiving your certificate of registration

When you receive a certificate of registration, the certificate will include an effective date. The effective date will indicate that the Copyright Office has received an acceptable application with the required deposit and filing fee.

An effective date is not needed to publish your copyrighted work. You do not need a certificate of registration to apply the copyright notice to your published work. Your effective date of registration must be obtained before you file suit against a third party for copyright infringement.

How to avoid copyright infringement?

Now that you know how to protect your copyright protected works, and understand that violating others’ copyrights is not that unusual in the modern business world, how do you avoid infringing on someone else’s copyright?

If you didn’t create it, be careful

If your business uses ad copy, pictures, music, or some other work that your business did not create, err on the side of caution. The most diligent approach to using other creators’ work for your business purposes is to assume that the work is protected under copyright.

But, remember, copyrighted does not mean off limits.

Copyrighted material may be perfectly acceptable for your business to use. You simply need permission to use it. If you want to use works that your business didn’t create, take the following steps to avoid infringement:

  1. Ask the creator if the work is protected under copyright
  2. If it’s protected, ask for “business purposes” permission to use it
  3. If their answer is no, offer to pay the copyright owner to use the work
  4. If you’ve taken these three steps, and the copyright owner continues to deny your request to use, it’s time to move on and use another work for your business purposes.

Read the fine print

Artists, musicians, authors, coders, creators of all types have more outlets to distribute their work today than ever before. For many, this is a great way for creatives to distribute their work and make a living off their creations.

But remember, these creators need compensation to make a living off their work. If you use a third party platform to source work for your business purposes (e.g. stock photo sites, music libraries, open source software, etc.), you agree to some form of terms of service when signing up for the service or downloading a specific work from the service.

Somewhere, buried in those terms, license language regarding use of copyrighted material informs you of your rights and restrictions regarding the use of the works you pull from the service. In many cases, your rights to use works from the site are more restrictive than you’d like to achieve your business purposes.

Consider Getty Images, a leading stock photo provider, as an example.

The company attracts users to its website to “find the perfect royalty-free image for your next project from the world’s best photo library of creative stock photos, vector art illustrations, and stock photography.” At face value, it looks like you pay your fee, and you are free to use the photo as you see fit.

Unfortunately, that depends on the photo you choose, and how your company intends to use it. The end responsibility lies on you, the user, to determine copyright restrictions. Check out Getty’s warranty disclaimer:

“Unless specifically warranted above, Getty Images does not grant any right or make any warrant with regard to the use of names, people, trademarks, trade dress, logos, registered, unregistered or copyrighted audio, designs, works of art or architecture depicted or contained in the content. In such cases, you are solely responsible for determining whether release(s) is/are require in connection with your proposed use of the content, and you are solely responsible for obtaining such release(s)”

In plain English, Getty will do their best to license their assets properly to you, but if you infringe on someone else’s copyright through use of a Getty asset … that’s on you.

Getty isn’t unusual in this approach.

Any platform that relies on massive scale of other people’s work will use a similar approach in their terms of service. If you have a specific use in mind for a stock photo or sound clip, ask the provider about your intended use, or ask the copyright owner directly.

See if “fair use” applies

“Fair Use” is an exception to copyright protection that aims to balance the copyright owner’s rights against public interest. Fair use is a subjective term, and it allows you to use a copyrighted work without the copyright owner’s permission when such use is fair and reasonable to promote public interest.

As you can imagine, such slippery language is endlessly debated by intellectual property lawyers, but generally speaking, courts evaluate a set of factors to determine if fair use justifies use of copyrighted material without permission:

  • Purpose and character of the use coupled with the nature of the copyrighted work
  • Amount of the copyrighted material used in relation to the work as a whole
  • Effect of the use on the potential market value of the copyrighted work

Historically, fair use is most often granted in cases where copyrighted material is used for education, reporting, public discourse, or other purposes where use isn’t strictly for commercial benefit.

It’s tricky to navigate a fair use analysis without the assistance of an expert, but consider it as an option if you want to use copyrighted material without permission.

Public domain and creative commons

Don’t forget about works that are expressly distributed for your free use, without permission.

Works in the “public domain” are those that are no longer under copyright protection or works that failed to meet the requirements for copyright protection.

Volumes of public domain works are readily available for your use, and more become available all the time. Take a look at public domain resources when searching materials for your commercial projects.

Creative Commons works are specifically licensed by the creator to broad audiences to share or build upon for their own purposes.

Unlike public domain works, Creative Commons requires a license to use, but the license has already been granted under one of the Creative Commons licensing arrangements.

In many cases, the only requirement under a Creative Commons license is to properly attribute authorship to the author and avoid certain uses. But, works distributed under a Creative Commons licenses were generally created with the intention that third parties use the work, and are therefore a great source of material for your business purposes.

Here are some good sources for finding public domain and creative common works …

Images:

Audio:

Video:

With all of these sources, check to see if the work is in the public domain or under a Creative Commons license. If it’s under license, make sure your use is permissible and you give proper attribution to the creator.

With content so widely and regularly shared today, it’s easy to unintentionally infringe on someone else’s copyright.

But, with a general understanding of copyright protected rights, and what steps you can take to avoid infringement, you can safely use copyrighted material for your business purposes and find works that are freely available for your use.


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