Secondary Copyright Infringement

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 What Is Copyright Infringement?

According to intellectual property laws, a copyright is a legal privilege created in an author’s work. Copyrights supply the author of new and creative work with exclusive publication, distribution, and usage privileges for their work. Copyright stops other individuals from using the author’s originally authored work without their consent.

Under federal copyright law, copyright permits an author to have many exclusive rights.

Some examples of such exclusive privileges include the right to:

  • Reproduce the copyrighted work as wished;
  • Distribute copies of the copyrighted work to the public for sale; and
  • Perform the copyrighted work as desired.

Some examples of copyrightable works include, but are not limited to:

  • Books;
  • Poems;
  • Song lyrics, musical compositions, and sound recordings;
  • Plays, motion pictures, and scripts;
  • Paintings and drawings;
  • Choreography;
  • Sculptures;
  • Software;
  • Broadcasts; and
  • Websites and online content.

Copyright infringement happens when someone transgresses a copyright owner’s exclusive rights without the express permission of the owner or author.

In addition to the rights mentioned above, the following are some examples of copyrights and typical copyright infringements:

Infringement of the Right of Reproduction
Copyright owners retain the exclusive right to reproduce their work in any fixed form. When a person reproduces a work by copying it and selling it, that action is deemed to be infringing an owner’s right of reproduction. An example of infringement of the right of reproduction would be copying a painting of original artwork and selling it.

Infringement of the Right of Public Performance
If a person publicly performs an original protected song without authorization, the act would infringe the copyright owner’s right to public performance.

Infringement of the Right of Distribution
An example of infringing an owner’s right of distribution will be if someone sells unlicensed copies of someone else’s original work, such as a work of literature or art. For instance, an individual could not copy a well-known musician’s music and distribute copies of that music for monetary gain.

Infringement of the Right to Derivative Works
Copyright owners retain the right to modify their original work or form a new work based on their older works. When a person makes a derivative of an original work without consent, it would be an infringement of the right to derivative works. The most typical example of this would be making a movie based on a book without the author’s consent.

Infringement of the Right of Public Display
Copyright owners have the freedom to show their work publicly. This includes publishing their work online. If a person posts someone else’s original work online without the owner’s consent, it would be deemed infringing a copyright owner’s right to public display. For instance, casting a movie online for the general public without the owner’s consent would be deemed an infringement of the right of public display.

What Is Secondary Copyright Infringement?

Secondary copyright infringement is a legal theory that permits a person to be held responsible for copyright infringement, even though they didn’t engage in the actual infringement activities themselves. It involves the defendant causing, compelling, or contributing to material copyright infringement activities.

Secondary copyright infringement may bear with it some severe legal consequences. It is also called contributory infringement or secondary liability for copyright infringement.

How Is Secondary Copyright Infringement Proven?

To be held responsible for secondary infringement or contributory infringement, the following elements must be uncovered:

  • There is a valid copyright in place
  • There is an existing case of direct infringement by another party
  • The defendant knew of the copyright
  • The defendant knew that their steps would lead to copyright infringement

For example, suppose the defendant supplied another party with access to copyrighted material, knowing that it would be used to infringe that copyright. In that case, they might be held liable under the law. Another example is when the defendant induced another party to overstep copyright. The defendant can be held responsible even though they didn’t physically perform the infringing activities in this circumstance.

Are There Any Legal Penalties for Secondary Copyright Infringement?

The Copyright Act doesn’t expressly create legal liabilities or penalties for secondary infringement. Nevertheless, this does not stop courts from imposing legal penalties on individuals engaged in contributory infringement.

Penalties for secondary infringement may resemble those for direct infringement. These can include:

  • Fines
  • Damages paid to the copyright holder for losses
  • In some circumstances, federal criminal charges)

The amount of damages may hinge on the number of losses caused to the copyright holder. The government may also seize any materials used in the infringement activities. Miscellaneous defenses to copyright infringement may be available for the defendant.

When Do I Not Need Permission to Use Someone’s Copyrighted Work?

Under specific circumstances, the Fair Use defense permits people to use copyrighted material without the copyright owner’s permission.

However, in resolving whether your work is fair use, you have to consider several factors:

  • The purpose and character of your work: If it transforms the original work into something completely new (such as using gum wrappers to make a purse), it is more likely to be deemed fair use. On the other hand, if your work copies the original work (such as a movie adaptation of a book), it is less likely to be deemed fair use.
  • The nature of the copyrighted work: If the original work is very creative and original, it may be more difficult for you to use the fair use defense.
  • The amount and quality of the material used: If you take a substantial amount of material from the copyrighted work or take material vital to the copyrighted work, it will be more difficult to establish fair use.
  • The effect on the market for the original work: Copying is more likely to be fair use if it does not harm the market for the original work.

What Are Some of the Other Defenses Available to Me?

Some of the other standard defenses to copyright infringement are:

  • Independent creation: If you did your work without knowing the copyrighted work, you have not infringed on the copyright because you didn’t copy the original. To demonstrate this, you typically must establish that there was no reasonable way for you to have been aware of the copyrighted work before creating your work.
  • First sale: The owner of a legally made copy of a copyrighted work has the freedom to sell or otherwise dispose of it. They may also display this copy of the work to the public. Thus, if you purchase a painting, you can sell it to your companion or show it at a museum without infringing on the copyright owner’s exclusive rights to distribution and display.
  • Violation of the statute of limitations: If the copyright owner lingers too long to bring a suit against you, they may not have a valid suit.

If you had no basis for thinking that the original work was protected by copyright or thought your use was fair, you might be considered an innocent infringer. Innocent infringers still have to stop their infringing behavior and pay the copyright owner for the commercial value of their use. Still, they generally do not have to pay damages to the copyright owner.

Should I Hire a Copyright Lawyer?

Secondary copyright infringement is a severe offense and can lead to stringent legal liabilities. You may need to employ a copyright lawyer for help with any copyright problems. Your attorney can supply you with legal guidance and representation for your claim.

If you need to file a lawsuit or appear in court, your attorney can advise you through that process from beginning to end. If you are sued in court, an intellectual property attorney can represent you.

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