When it's so easy to go to Google Images and download a picture or photograph you like, it might seem like copyright infringement is hardly something to worry about these days. If you use that picture for certain purposes, though especially to make money there's a good chance you'll find out otherwise.
Now, there's a common misconception that simply giving credit to the holder of a copyrighted work is usually enough to stay on the right side of the law. Musicians who think they are simply paying homage to an influence of theirs by sampling the melody from a previously recorded song will find out they need to do more than give credit on the record sleeve. The truth for musicians, and anyone else wanting to use "original works of authorship" fixed in a tangible medium, is that you need permission from the copyright holder to use his or her copyrighted work.
What Rights Do Copyright Owners Have?
U.S. copyright law gives copyright owners a handful of exclusive rights. They include the right to:
- Reproduce the copyrighted works
- Prepare derivative works based on the original copyrighted work
- Distribute copies of the copyrighted work to the public by sale, rental or lease
- Perform, display, or digitally perform the copyrighted work
Damages for Copyright Infringement
If you use someone else's copyrighted work without permission, you'll likely have more to worry about than a fleeting sense of embarrassment. Even if the copyright owner did not register the work with the U.S. Copyright Office, the infringer could be forced to pay the owner any profits realized from the infringement, as well as any profits the owner missed out on.
If you infringed upon a registered copyright, the owner could also receive statutory damages. Willful copyright infringement could result in penalties of up to $150,000 per violation, while the maximum for non-willful infringement is $30,000. Regardless of the copyright's registration status, infringers might also be ordered to destroy the infringing material.
Copyright protection is not absolute; there are limits to what is considered infringement. One defense alleged infringers may use in court is the “fair use” defense. Fair use means that the portion of the copyrighted work was used for a purpose that is permitted under U.S. law. Such reasons include using the excerpt for criticism or commentary, educational purposes, scholarship and research, and parody usage. Be aware that successfully asserting fair use is easier when you are not trying to make a profit.
Barack Obama's ‘Hope' Poster
One of the most widely recognized photo illustrations of a political figure in the past few decades is the Obama “Hope” poster created by a street artist during former President Obama's first presidential run. After the 2008 election, the Associated Press revealed that the photograph the street artist used to create the iconic poster was taken by one of their freelance photographers in 2006.
The AP alleged that the street artist needed permission to use the photo in his design. The street artist claimed that the doctrine of fair use covered his use of the photograph. The two sides ultimately settled; the AP announced that the artist agreed to share merchandise rights and profits. The judge encouraged the two sides to come to an agreement, as the AP would have likely won the legal battle.
How to Properly Give Credit
Once you've identified an original artistic work you'd like to use for your business or creative venture, the first step is contacting the owner of the copyright. Unless you are positive you can claim fair use for the portion you use (an attorney can help you determine that), you need to secure permission to use the copyrighted work. And, depending on how you are using the original work, you need to find somewhere visible to place the copyright notice.
The Browne Firm Can Help
There's a good chance that the holder of a copyright you want to use for your next business or creative endeavor would be perfectly fine with your use of their artistic works. Still, it's essential that you undertake the proper process for using someone else's work. Not doing so could ruin your finances and reputation.
Our firm is well-equipped to handle all manner of legal issues that arise when commercial interests and intellectual property intersect. Call our office at 914-530-3070 to see how we can help you and your company.