What is copyright infringement?
Copyright infringement is the use of works protected by copyright law (images, film, books, music) without permission. Use of these works without permission (usually in the form of a license) infringes the copyright owner's exclusive right to reproduce, distribute, perform, or make derivative works of the original work.
When you infringe on the copyright of an author, the author might choose to file a takedown request under the DMCA. The copyright holder may choose to send you a copyright infringement notice directly, or can use the systems provided by platforms such as Youtube and Twitch. This notice usually comes in the form of a copyright infringement notice letter / email.
Don't ignore the Copyright Infringement Notice.
Generally, ignoring a notification and/or cease and desist letter is a bad idea. While it might be tempting to ignore the letter, take down the image, and hope the problem goes away, ignoring a copyright demand letter will cause the copyright holder to spend more resources to protect their copyright. When the copyright holder has to expend additional resources, this can potentially increase the amount of damages that the copyright holder can seek to have enforced against you or your company.
Don't immediately call the copyright holder and/or the copyright holder's lawyer.
The reason for this is simple - anything you say can and will be used against you.
Often times in the heat of the moment clients will want to call the copyright holder or the copyright holder's lawyer to explain their side of the story. While clients often have the best of intentions when doing this (Hey! They're people - they must make mistakes too), it could potentially give the opposing side additional information that they could use in a case against you.
On that call, if you were to in any way admit fault for the violation, they could use that information against you in a way that could dramatically increase the amount of damages that you or your company is liable.
Know what you're up against, but don't panic.
Cease and Desist & Minimal Fees
When you receive a copyright infringement notice, usually the copyright holder will simply ask you to "cease and desist" use of the copyright. Most terms of a cease and desist letter are usually reasonable. For example, Getty Images has a policy of only seeking to be put in the position they would have been in had the image been properly obtained (in short, they're only looking for the licensing fees that should have originally been paid to use the image for a particular period of time).
Litigation & Statutory Damages
If you have encountered a copyright holder that is looking to engage in litigation against you over the copyright infringement (or if you have repeatedly failed to answer a copyright infringement notice letter and/or cease and desist use of the copyrighted work), then your situation can escalate dramatically.
Generally, litigation will lead to statutory damages.
Under United States federal copyright law, a copyright owner can be entitled to damages between $750 and $30,000 per infringement. If the copyright owner is able to show that the infringement is willful, the law will allow them to seek as much as $150,000 per infringement.
The modern trend doesn't give any slack to copyright infringers - recent jury awards have ranged from $675,000 - $1,000,000. A jury in Western Washington state awarded a copyright holder over one million dollars in damages for the unauthorized use of 5 images.
The key here is to not panic. The cost of a copyright holder engaging in litigation is extremely high (think 6-figures), so the odds of someone wanting to take a copyright infringement suit to a jury is low. This is because they don't want to take the risk of losing. However, you should still try and respond to the copyright infringement notice in a timely manner.
Investigate the claims made against you or your company.
There are a lot of factual questions you'll need to answer before you can determine a clear course of action. You will need this information regardless of whether you choose to answer the letter yourself or if you decided to work with a lawyer.
Facts about the copyright infringement
Look into the following issues:
- Where did the images (or other copyrighted material) come from?
- Do you or your company have a valid license to be using the material (see “How do I properly use third-party copyrighted content in my Twitch stream” for more information)?
- What is the license of the copyrighted material? Is there anywhere online that it may be listed under a "Creative Commons" license?
- Was the license potentially purchased under another individual's name or a different company name?
- Could the license have been purchased by a designer or another independent contractor?
- Could the license have been purchased under the name of another employee?
Even if the answer to these questions does not help your case, it is crucial that you work to obtain this information. Understanding your present circumstances is half the battle (and also useful for your lawyer).
Facts about the copyright holders case
There are also a few legal things that could prevent a copyright holder from being able to enforce their rights. Keep in mind that these issues delve deeper into the actual law, and thus it's likely that a lawyer will be needed to answer some of them.
Things to investigate include:
- Has the copyright holder waited an unreasonable long time to enforce their copyright claim?
- Has the copyright holder waited so long to enforce their rights that the statutory period has run out?
- Does the copyright holder have a validly filed copyright and/or did they at the time you used the image?
Write and send a response to the cease and desist letter.
The last step in responding to your cease and desist letter is to actually respond to the copyright holder (or their lawyer). It is highly recommended that you consult with a lawyer to respond to a copyright infringement claim. But if you choose to do it yourself, there are two things you need to keep in mind:
First, keep your letter professional. Second, remember that anything you say can and will be used against you! If you were to admit even the slightest bit of fault on the phone or in a letter, this material can be used by the copyright holder to pursue litigation (probably for a higher damage amount) against you. So make sure that your letter addresses their need of having the copyrighted material removed, but doesn't give the copyright holder unnecessary information.
In the letter you'll want to address a few things:
- The claim made against you
- The validity of the legal copyright holders legal claim
- Any valid defenses you have
- The fact that you have removed the copyrighted material from your website/blog/etc.
- Proposed next steps for settlement (i.e. - sending them the licensing fee amount, another settlement amount, and/or removing the infringing material)