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Home > Using Copyright > Evaluating Risks > Infringement

Infringement

Penalties for infringement may include:

  • Injunctions
  • Destruction of infringing articles
  • Damages and profits
  • Costs and attorney's fees
  • Criminal charges

What is infringement?
Violating any of the exclusive rights of a copyright owner constitutes an infringement of the copyright. Infringement can occur with or without the infringer's knowledge, and with or without any intent to infringe. This means that you can be guilty of infringement even if you didn't know you were doing it and didn't mean to!

When any right of the copyright owner is infringed the owner can sue the individual directly responsible for the infringement, as well as others who may have contributed to the infringement either directly or indirectly. The infringer could be ordered to pay either the cost of the actual damages to the owner or statutory damages of up to $20,000 per offense, and up to $100,000 per offense if the infringement is found to be willful. In addition, if the infringement is found to be willful and for commercial purposes, criminal charges may apply.

Avoiding infringement
The old adage that "ignorance is no excuse" holds true for copyright.

We are all responsible for knowing the copyright rules and abiding by them. Knowing and abiding by the rules of copyright will help avoid a claim of infringement.

  • Copyright owner has 5 exclusive rights, including: the exclusive right to copy, adapt, distribute, display and perform the work.
  • Be aware how your use of a work will be viewed with respect to these five rights.
  • If your use is not clearly within one of the exemptions or a license, you need permission to use the work.
What if permission is not practical?
Sometimes it is impossible to find the owner of a work or obtain permission. Publishers go out of business, authors may be deceased and heirs are not known, or a work found on the Internet may not have any information to identify who owns the work. What happens if you know you need permission but you can't get it?
  • The best answer is not to use a work if you don't have the permission you need.
  • If you proceed, you run the risk of being charged with willful infringement.
Alternate Approach
  • Consider using an alternate work for which you can obtain permission or don't need permission.
  • Consider if it is possible to point your audience to the work, such as a link to a website or to a resource in the library, rather than copying a work.

Adaptation Right
Anyone that has worked in a creative endeavor knows that many new works build to one degree or another on the earlier works of others. From the copyright perspective, when is building on the works of others considered a proper inspiration and when is it considered improper infringement?

It is hard even for courts to draw the line between the two. It is fairly easy to determine whether a work is copied in its entirety. It is harder to determine if a work that is similar to another is an unauthorized adaptation.

You can be inspired by and reuse ideas, facts, or style of another's earlier work to form a new work without infringing a copyright. This is because these elements of a work are not protected by copyright and thus they can be reused and recast into new original expression.

To copy all or part of an earlier author's copyright-protected expression in a new work may infringe the earlier author's rights.

 

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Evaluating Risks
Evaluating Risks
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