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Thursday, December 3, 2009

Copyright? Who Cares? You Do!

Imagine that you are doing your usual internet browsing and notice an image that looks just perfect for your business’ Web site. So, you copy it and paste it onto your site, with no other thought. Then, weeks, maybe months later, you receive a demand letter, asking for thousands of dollars in damages for use of the image.

You did not intend to do anything wrong. But did you?

Most likely, yes, even if you did not intend to do anything wrong. You have committed copyright infringement, which occurs when one of a copyright owner’s exclusive rights is violated.

Because copyright infringement is a strict liability violation, it is possible to be liable even if you had no knowledge that an infringement occurred (“anyone who violates any of the exclusive rights of the copyright owner” is liable; 17 U.S.C. §501(a) (1994)). This means that, even if you thought the image was perfectly free to use, you are liable. And, liability can be expensive.

Also, even if you stop using the image after you determine that it was owned, you are still liable for the time frame where you used the image unauthorized.

The best defense to this type of situation is first to determine if the image is in fact registered with the copyright office. Statutory damages and attorney’s fees can only be awarded if the registration was filed before the infringement or within 3 months after the first publication of the work (17 U.S.C. §412). If the image is not registered, then the likelihood of damages being awarded is slim.

Of course, the best advice I can give in this situation is to avoid it all together. Prevention is the best medicine to avoid strict liability copyright infringement.

If you see an image that you wish to use, you must receive permission from the author. Check to see if the image indicates the user privileges and if you must pay to license the image.

Sometimes giving credit to the author may be all that he or she wishes, but you never know. Better to be safe than sorry when it comes to intellectual property ownership.

By Kelly L. Swan Taylor, Esquire

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