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The Law Office of Timothy P. Koller, PLLC > Blog  > Copyright Infringement and You

Copyright Infringement and You

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Copyright is a tricky area.  By definition, it is the legal protection for “original works of authorship,” including literary, dramatic, musical, architectural, graphic, audiovisual, and other creations.  Copyright protections to protect the rights of the author attach automatically as soon as a thing is created, although the automatic protections are not as powerful as a copyright that is federally registered.  For example: your tenth grade book report on The Great Gatsby is copyrighted as long as you created it and it is not copied from somewhere else, just by virtue of the fact that it is your original work of authorship.

If you copy an original work without permission from the creator, generally you have committed copyright infringement.  Most people have run afoul of copyright law at some point in their lives without even knowing it.  Have you ever doodled Pac-Man?  Congratulations, you’ve committed copyright infringement!  The copyright owner may contact you with a “cease and desist” letter or sue you for infringing their character.  If that doodle is your worst offense though, rest easy: your everyday infringement is generally not enough to expose you to serious risk.  Most copyright owners will not waste their time enforcing their copyright against doodlers for economic reasons.  It is expensive to carry a lawsuit from start to finish, and the cost of litigation greatly exceeds any award they would get for winning and enforcing the copyright.  By doodling, you are not taking away any major benefit that the copyright owner is otherwise entitled to, so it is more pragmatic to let your doodle go.

Along that vein, the more money you make from an infringement, the more likely you are to be met with a cease and desist letter (or worse, a summons and complaint).  Let’s say you created an oil painting of Pac-Man for fun one day (without any prior license agreement with the rights holder) and it is hanging in your house.  That on its own is not likely to merit a response from the copyright owner unless they are extraordinarily petty or protective of their intellectual property.  However, you get lots of compliments on your painting and decide to have 2000 high-quality prints made to sell for $100 in profit each.  Now you are wrongfully profiting from the unauthorized use of that character to the tune of $200,000.  In this scenario, it is far more likely that you would be facing a copyright infringement lawsuit and risk losing that income.

In recent years and with the increased popularity of pop culture conventions, copyright infringement has become a huge issue.  Rights holders find themselves at a crossroads when a fan reproduces a famous character or prop for these events: they can enforce the copyright and sue the fan of their movie/show/comic, but they run the risk of alienating the rest of their fanbase and losing real revenue by doing so.  If they choose not to enforce the copyright, they do not risk their popularity and profitability of their brand but over time it becomes more challenging to protect their copyright against a big-time infringer who can really hurt them.

What if you’re sued for copyright infringement?  The good news is that there are defenses available to you, the most popular being “fair use.”  Keep in mind that fair use is specifically a defense to an infringement suit—claiming fair use will not keep a rights holder from suing you, but it may keep them from winning.  If you can show that your copy was adequately transformative, your unauthorized copy may fall under fair use and be permissible after all.  For example, Weird Al is famous for creating parodies of the songs of other artists.  He usually copies the instrumental music, but changes the words of a song.  By changing the words and turning the song into a parody, his version of a song is generally transformative enough to be classified under fair use.  Weird Al covers his bases though, and has been known to ask the original artist for permission before he parodies a song even though he may not have to, as a show of good faith.  With that kind of forethought about liability, Weird Al would probably make a great lawyer (although accordions in the office are generally discouraged).

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