What Is Infringement?

Where You Need a Lawyer:

(This may not be the same place you live)

At No Cost! 

 What Is Infringement?

Infringement refers to the unauthorized use of protected material under intellectual property laws. This usually refers to instances of copyright infringement, such as when artistic works, music, or literary works are used without the creator’s approval. However, infringement can also involve other categories of intellectual property law, including trademarks and patents. In recent years, domain name infringement has also become a standard legal dispute.

Proving infringement usually requires valid copyright, trademark, or patent in place. It also requires evidence that the defendant used the material, artistic work, or invention without notifying the person who has ownership rights in the material.

What Is Copyright Infringement?

According to intellectual property laws, a copyright is a legal right created in an author’s work. Copyrights provide the author of new and creative work with the exclusive publication, distribution, and usage rights for their work. Copyright prevents other people from using the author’s initially authored work without their permission.

Under federal copyright law, copyright permits an author to have many exclusive rights. Some examples of such exclusive rights include the right to:

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

Some models 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 consent of the owner or author.

In addition to the rights mentioned above, the following are some examples of copyrights and common 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 act is considered 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 consent, the act would be considered infringing the copyright owner’s right to public performance.

Infringement of the Right of Distribution
An example of infringing an owner’s right of distribution would 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 famous musician’s music and distribute copies of that music for monetary gain.

Infringement of the Right to Derivative Works
Copyright owners possess the right to modify their original work or create a new work based on their older works. When a person creates a derivative of an original work without permission, it will infringe on the right to derivative works. The most common example would be creating a movie based on a book without the author’s permission to do so.

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

What Are Some Penalties for Copyright Infringement?

If an individual infringes on the exclusive rights of a copyright holder, the holder of the copyright may sue the infringer civilly for damages resulting from that infringement.

Common legal penalties associated with copyright infringement include:

  • Compensatory Damages: One of the most typical remedies associated with a copyright infringement suit is that the infringing party will have to pay the copyright holder the money that they gained from the use of the copyright;
  • Statutory Damages: Statutory damages are specified by statute, particularly Section 504 of the Copyright Act. Statutory damages permit the copyright owner to recover a specified amount of damages, typically between $200.00 and $150,000.00 per infringed work. Statutory damages will be higher for parties that willfully violate copyright and lesser for parties that were not aware they were violating copyright;
  • Injunction: The most standard remedy for copyright infringement is an injunction. An injunction is a court order that instructs the party violating the copyright to stop their infringing acts;
  • Orders of Seizure: If an infringing party possesses illegal copies of a copyrighted work, often the court will order that the unlawful property be seized; and
  • Criminal Penalties: In the case of willful copyright infringement, the infringing party may also be held criminally responsible and face criminal penalties, including imprisonment for up to 5 years, fines of up to $250,000.00, or both per violation.

It is essential to mention that a copyright infringement lawsuit may include any combination of the above damages and lawyer fees, and court costs. A lawyer for copyright infringement will be able to determine which remedies are appropriate depending on the circumstances of each case.

What Are Royalty Disputes? Are These the Same as Infringement?

Royalty disputes may arise in connection with copyrighted material. Royalties are small fees paid by one person each time they use another person’s copyrighted material. A typical example is when a record company pays music royalties to a musician whenever the song plays on the radio.

Therefore, royalty arrangements usually imply an existing contract between the parties. The dispute typically involves a failure to pay the royalty fees or a dispute over fees. However, the defendant has permission to use the material in most cases.

On the other hand, in an infringement case, the defendant party typically does not have the plaintiff’s permission to use the copyrighted or trademarked material. In this sense, most infringement cases involve an appropriation (unauthorized use) of the material rather than a breach of contractual terms. However, a case can sometimes involve both infringement principles and a dispute over royalties.

Are There Any Legal Defenses to Infringement?

Depending on the facts of the case available to the court, there can be some legal defenses to infringement. A common defense to infringement is that of “consent.” If the defendant can establish that the plaintiff agreed to the use of the material, it may deliver a defense. This can be a convincing argument, primarily if the defendant supplied payment for the usage.

Another defense is that the copyright, trademark, or patent has expired. These protections may expire over time, often without the individual knowing that the copyright has expired. If this is the circumstance, it will be difficult for the plaintiff to assert their legal rights.

What Is a Trademark?

A trademark is a word, phrase, logo, or other symbol used to specify a product, the source, manufacturer, or merchant. A trademark is usually used to distinguish one product and its manufacturer from another.

Before registering your trademark, it is vital to run a trademark search to specify whether another business or entity is already using the same name. You do not want to develop a business name, run ads, design brochures and specific items, and be forced to change the name.

Common Types of Trademarks

There are many types of trademarks, such as:

  • Service Mark – Rather than promoting a product, the service mark promotes a particular type of service
  • Trade Dress – A product is sometimes known for its special packaging or trade dress
  • Collective Mark – A collective mark is a symbol, word, or phrase used to identify a group, organization or association and the products, services, or members of the group
  • Certification Mark – A certification mark is a symbol or name used to guarantee the quality of another’s service or product

Should I Hire a Lawyer?

Infringement can often be a difficult legal concept to grasp. You may wish to hire an intellectual property lawyer if you need assistance filing an infringement claim. Your attorney can provide you with the necessary legal advice to succeed on your claim.

Also, your lawyer will be able to represent you during court meetings as the lawsuit progresses. Many intellectual property lawyers know various sub-fields of law.

Law Library Disclaimer


16 people have successfully posted their cases

Find a Lawyer