Internet Law and Copyright Infringement – Where Does the Burden of Proof Lie?

downloadThe Internet is here to stay, of that we can all be sure. It is practically impossible to imagine our modern world without contact through the Internet, without the massive wealth of information available, without all the blogs and forums and chat rooms which have sprung up over the last two decades. Also here to stay is the constant discussion on what is acceptable in the Internet, on where national and international laws are enforceable and how they can be enforced, or who should be responsible, and this is especially relevant when it comes to copyright laws.

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Infringement of Copyright – What Kind of Damages Are Available

images (1)Under the Copyright Act, an infringer of a copyright is liable for either the owner’s actual damages and any additional profits of the infringer or statutory damages. It is within the discretion of the plaintiff, or individual seeking to protect his or her copyrighted work, to elect either actual damages or statutory damages. More often than not, the owner will elect statutory damages where that owner has registered the work with the Library of Congress. The reason for this is that the owner may not be able to establish actual damage to the copyright, to the owner’s business, or ill-gotten profits of the infringer in such a way that the total amount is greater than that which is available under the Copyright Act for statutory damages.

That said, it is important to note that courts, within their broad discretion, may look to actual damages suffered when determining what the statutory damages award should be. However, there are limitations within the Copyright Act that control the amount of statutory damages on a minimum and maximum basis. For example, a willful infringement of a registered copyright enables the court to award statutory damages up to a maximum of $150,000. However, where the plaintiff fails to sustain its burden of proving willful infringement, the court may reduce the award of statutory damages to a minimum of $200. Typically, an owner pursuing an infringer will be limited to statutory damages between $750 and $30,000 for the infringement of one work.

While statutory damages are intended to create an incentive for owners to protect their valuable intellectual property, and conversely to deter the unauthorized and unlawful use of another’s copyright, the ability to recover costs and attorneys’ fees is yet an additional motivation of some owners when seeking to redress copyright infringement. Once again, the importance of a federal registration of a copyright becomes clear because not only are statutory damages available, but attorneys’ fees and costs are also available in an infringement lawsuit.

In sum, it is important that an owner understands what damages may be available to redress infringement of copyright. Likewise, an entity accused of copyright infringement should understand not only the legal exposure, but must also understand the financial exposure. With these principles in mind, owners can make educated decisions regarding which works to protect with federal registrations, how often to file such registrations, and whether to file as compilations, understanding that infringement of such compilation will be limited to statutory damages for one work.


Copyright Infringement – How Much Similarity is Required For “substantial Similarity”?

download (2)In order to bring a copyright infringement lawsuit, the copyright holder must be able to establish three elements. The first, ownership of a valid copyright, requires that the copyright relate to an original work of authorship that is fixed in a tangible medium. The second element requires actual copying of that work, which can be shown using either direct evidence, indirect evidence, or a combination of both. Finally, a copyright holder must prove misappropriation. It is this third element that goes directly to the question posed in this article. How much of my work can be incorporated in another work before it constitutes copyright infringement?

Unfortunately, there is no definitive answer to this question. Instead, one must look to case law precedent to establish how much is too much. That being said, when alleging copyright infringement, the copyright holder must show that what was indeed taken and incorporated into the allegedly infringing work was copyright protectable. Once this is established, it is up to the plaintiff to show that the audience for the work will recognize “substantial similarities” between the two works. Although there is no set percentage, for example, to determine whether substantial similarity exists, two commonly recognized methods are available to assist in the misappropriation portion of a copyright infringement analysis.

The first method, known as the subtractive method or the abstraction/subtraction approach, first identifies what parts of the work are protectable. The method then directs the finder of fact to eliminate, or subtract, those elements that are not protectable. The remaining elements are then compared to the allegedly infringing work to determine whether substantial similarities exist.

The second method, known as the totality method or total concept and feel approach, leaves the works in their entirety when doing the analysis. In particular, the entire copyrighted work is pitted against the allegedly infringing work to determine whether a substantial similarity exist. Clearly, it is the goal of the defendant to show differences between the two works in an effort to avoid liability.

Today, courts will employ each of the above methods, and at times both methods, to aid in the misappropriation analysis. Given the factual nature of copyright law, it is not out of the question for one method to favor a copyright holder while the other method favors the alleged infringer. Therefore, it is worthwhile to, at the outset of any intended action for copyright infringement, analyze the likelihood of success under both methods. This will not only enable the copyright holder to identify the strengths and weaknesses of the particular case, but it will also allow the copyright holder to make a decision whether or not it is worthwhile pursuing a copyright infringement lawsuit. In the alternative, cease and desist letters, negotiation, for an amicable resolution, or other means short of litigation, such as copyright licensing, may be a possibility worth exploring.

Therefore, while ownership of a valid copyright and actual copying are two factors that also require particular analysis, oftentimes the misappropriation element is the determinative factor in a copyright infringement matter. Copyright holders are well-served to fully analyze the extent of misappropriation just as defendants to a copyright infringement lawsuit should constantly be looking to identify elements that negate a finding of substantial similarity.


Book Cover Images: How to Find and Use Them Without Copyright Infringement

download (1)People judge books by their covers. There’s no way around it, and even the worst written book can potentially sell well if it has a winning cover. Big publishing companies have staffs of graphic artists to design eye-catching book covers, but often self-published authors cannot afford an expensive book cover, or they simply try to cut corners. Other times, they might prefer a photograph or an older image they think will resonate with their readers. In any case, finding the right image can be difficult.

Recently, I asked an author where he got the image for his book cover and he told me Google Images. Sadly, the image he used was not in the public domain. It is copyrighted and he used the image without permission, and I’m finding this situation is becoming more and more common among authors.

Let me say this loud and clear: Just because an image is on the Internet does not mean you have the right to use it. And now I hear some people saying, “I know that. That’s why I put the artist’s name on the back cover or on the copyright page.” Wrong! Even attributing the work to the artist does not give you the right to use the image. After all, you are going to make a profit by selling that book and that artist’s image is going to help you sell your book, so doesn’t that artist have a right to some of that profit? Of course. Unless you check with the artist for permission, which you need to get in writing and often will also pay a fee for, you do not have the right to use that image.

And it’s not just images on book covers. I also see a lot of copyright infringements inside books with photos and especially cartoons or comic strips. Sure, we all love “The Far Side,” but that doesn’t mean Gary Larson loves you putting his cartoons in your book without his permission.

Bottom line: Any image you plan to use you must assume is copyrighted, and then you must research and find the owner and receive permission. If you can’t find the owner, or you write or email the owner and do not receive a response, DO NOT USE THAT IMAGE.

So what is an author to do if he doesn’t want to pay hundreds or thousands of dollars for a graphic designer or for permission to use an image? He finds royalty free images or images in the public domain.

Royalty Free Images can often be found at places like Stock Photo websites or other sites, simply by Googling “royalty free images.” At these sites, photographers or others upload their images and you have the right to use them for free. Nevertheless, these sites make me nervous. You’ll be better off to go take your own photos or find a photographer willing to take a photo for you. If you do decide to use a stock photo image, I recommend you still contact the owner to let him or her know of your intention and ask for written permission regardless. You also still need to attribute the image to its owner or creator.

Public Domain Images are images whose copyrights have expired. Depending on what country you are in, the copyright laws can vary. Generally, copyrights run fifty to seventy years either after the image’s creation/publication or after the death of its creator. Remember, however, that copyright laws have changed over the years and the length of time of copyrights have been longer and shorter at different times. As a general rule in the United States, anything prior to 1930 is usually in the public domain, but it never hurts to be safe and double check. Sometimes copyrights can actually be renewed, in which case an older image might still not be available.

Where do you find public domain images? A simple search will yield many results. Some of the websites I’ve found are listed below. Perhaps the best website is Wikipedia because it will usually only have public domain images on it and it also has links to other public domain images.

Remember also that even if you find an online image in the public domain, your ability to use it will often depend on the quality of its resolution. If you don’t understand resolution, talk to your book cover designer to find out whether an image will work. Often once you find the image you like online, you can track down a paper book that contains the image and then scan the image so you have higher resolution.