Introduction
The digital age has made accessing information easier than ever. While this presents many opportunities, it also brings about certain challenges, especially concerning the legalities surrounding copyrighted material. Many people assume that if a piece of content is easily available online, it is free to use. This misconception can lead to significant legal ramifications, including paying expensive license fees or potentially even litigation. This article discusses the dangers of using copyrighted material from the internet and how to handle a cease and desist letter related to copyright infringement.
Automated Copyright Enforcement
We are increasingly seeing the use of automated copyright enforcement tools on the internet. These tools use software to search the internet for a set of copyrighted works, often photographs that have been copied from an authorized website and posted somewhere else. Upon finding infringing works, these tools trigger some type of demand letter. Using these software tools is a cheap but legal way for copyright holders to monetize their copyright portfolio. This also means that it is increasingly likely that infringements, even innocent ones, will be discovered and will result in some type of enforcement action.
Copyright Protection of Unregistered Works Under U.S. Law
One common misconception is that a work must be registered with the U.S. Copyright Office for copyright protection to exist. In reality, a copyrightable work enjoys protection under U.S. law the moment it is fixed in a tangible medium of expression. This means that even unregistered works, such as blog posts, photographs, or music tracks available on the internet, are protected by copyright law. Registration of a creative work with the Copyright Office gives the owner the right to claim statutory damages and is required to bring a claim in federal court, but registration is not required establish copyright in a work or enforce the copyright short of litigation.
The Risk of Statutory Damages
As stated above, an important benefit of registration is that the owner can claim statutory damages for infringement of their copyright. The use of registered copyrighted material without permission could result in a claim for statutory damages between $750 to $30,000 per work infringed, and if the infringement is found to be willful, the amount can go up to $150,000 per work. Importantly, the claimant does not need to prove actual damages to be awarded statutory damages.
The ability to claim statutory damages is the most significant leverage a copyright holder has to enforce their copyright. Copyright holders are getting more sophisticated, and they know that the threat of statutory damages often compels a quick settlement. Further, copyright holders will often demand statutory damages at the lower range permitted under copyright law (i.e., under $5,000), knowing that the cost of defending an infringement claim will almost certainly exceed the demand.
Receiving a Cease and Desist Letter
If you receive a cease and desist letter alleging copyright infringement, your first step should be to consult with a legal professional experienced in intellectual property law. Ignoring the letter is not advisable, as it may escalate the situation and increase potential liabilities. Here is a general guide to what a legal professional would most likely do/recommend:
- Verify the Claims: Ensure that the alleged copyrighted material belongs to the claimant and that your usage infringes upon their rights.
- Immediate Action: If the claim is legitimate, remove the offending material immediately. Note that removal of infringing materials is not a defense to a legal claim, but it does show good faith and limits the damages the copyright holder could claim.
- Engage in Dialogue: Contact the claimant or their legal representative to discuss the matter. It is often possible to negotiate a licensing agreement or another type of resolution, although this will often require a payment to the copyright holder.
- Legal Defense: If you believe the usage is permissible under Fair Use or another legal doctrine, your attorney can outline your defense in a response letter. The doctrine of “fair use” permits using limited portions of a work for purposes such as commentary, criticism, news reporting, and scholarly reports. However, fair use generally does not permit any use of copyrighted works for other purposes, and the fair use doctrine may not permit you to use photographs for any purpose.
- Settlement: As a last resort, a monetary settlement may be negotiated to avoid litigation.
Conclusion
The unauthorized use of copyrighted material obtained from the internet, even if that copyright is unregistered, can lead to severe legal consequences, including statutory damages. Therefore, it is crucial to verify the copyright status of content you intend to use. Should you receive a cease and desist letter, consult with an attorney immediately to protect your interests and navigate the complexities of copyright law effectively.
FMJ provides a wide array of copyright services on all fronts. For example, we can help conduct copyright reviews and investigations or respond to copyright infringement claims. FMJ can also assist with registration of copyrights in the United States and with enforcement of copyrights. Contact Attorney Pat Shriver to discuss any of the issues above, and click here to learn more about our Intellectual Property Practice Group.
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