Have you ever copied and pasted a picture from Google images onto your website or blog thinking it was completely harmless? There may be a copyright infringement issue raised when using images and other works found on the internet for one’s own businesses and websites. The unauthorized or unlicensed use of another’s copyrighted work is a violation of federal law for which there can be steep monetary penalties. Because unintentional copyright infringement is very common, some law firms send copious amounts of copyright infringement demands, threatening monetary damages for the use of copyrighted works.
You may have received such a demand. While there are endless amounts of copyrighted works floating around the internet, not all uses of those works will result in copyright infringement. There are a couple defenses to a typical copyright infringement claim that may protect you.
The doctrine of “fair use” protects certain unlicensed uses of copyrighted works. For example, the use of a copyrighted work for teaching or research purposes, comment or criticism, or news reporting may be protected by the fair use doctrine. Fair use requires a case-by-case analysis using four factors defined by the United States Supreme Court:
- The purpose and character of the use: Under this first factor, courts consider (1) the extent to which the use of a work is transformative and (2) whether the use is commercial or noncommercial in nature. A use is more likely to be transformative if it adds something new to the copyrighted work and alters the original with a new expression, meaning, or message. A copyrighted work used for a noncommercial purpose (such as using the work as a teaching tool) is more likely to pass the fair use test than a work used for a commercial purpose. However, non-commerciality is not a guarantee of fair use but, rather, a consideration in the larger analysis.
- The nature of the copyrighted work: Under the second factor, courts consider (1) the type of work that was used and (2) whether or not the work was already published. The use of a factual work is more likely to be protected by the fair use doctrine than the use of a highly creative work, such as a play or a novel. The use of a copyrighted work that has already been published also has a higher likelihood of being fair than the use of an unpublished work—the original author has the right to control the first publication of his unpublished work, so taking that opportunity from him is certainly unfair.
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole: Under this factor, courts consider how much of the copyrighted work was used. Copying an entire work weighs against a defense of fair use, but sometimes copying an entire work is fair where the use was transformative or necessary to make a fair use of the work in the first place. On the other hand, use of even a small portion of the copyrighted work may not be protected if the portion used was the “heart” of the copyrighted work.
- The effect of the use on the potential market for or value of the copyrighted work: Courts have said that the final factor is the most important one. If your use of the copyrighted work usurps the copyright owner’s existing or potential future market for his work, then it is highly unlikely that you will be protected by fair use.
Each factor is a consideration in the entire analysis. If your use of a work does not pass one of the four factors, the defense is not necessarily doomed but it may be crippled. The factors are ultimately weighed together to determine whether or not an unlicensed use of a copyrighted work was fair and, therefore, not an infringement.
Another defense to a claim of copyright infringement is one of the innocent infringer. The innocent infringer acknowledges that he did not have a license to use a copyrighted work but that he did not know he was infringing. While copyright infringement can have very high monetary penalties, a court may reduce these penalties to as low as $200 for an innocent infringer. Similarly to fair use, the innocent infringer defense must be analyzed on a case-by-case basis.
If you find yourself on the receiving end of a copyright infringement notice, attorneys at Waldron & Schneider can help you analyze your situation, respond to the notice, and guide you to a rightful resolution of the problem.
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