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You are here: Home > Law > Copyrights > Who Is A Copyright Infringer?

Who Is A Copyright Infringer?

Anyone who violates any of the exclusive rights of a copyright owner is an infringer of the copyright. Copyright protection begins as soon as an original work of authorship is "fixed" in any tangible medium of expression.

Given the ease of clicking the "save as" key or blocking and copying materials accessed online, copyright infringement occurs regularly in cyberspace.

There are three levels of copyright infringement, each of which differs as to the level of intent to infringe or knowledge or the infringement, as well as the method of proving liability. The infringement can occur directly, contributory, or vicariously.

• A person directly infringes a copyrighted work by either reproducing, adapting, publicly distributing, performing, or displaying, or importing it (we'll refer to all of these things, from time to time, as "copying" to make it easier to discuss). Direct infringement is a strict liability tort: the infringer doesn't have to know that he is infringing or intend to infringe. He doesn't even need to know the work is copyrighted. Simply copying the work, the person is liable for copyright infringement.
• A person contributorily infringes when he provides substantial assistance for the infringement, knowing that the work is protected. He also needs to receive a direct financial benefit from the infringement to be held liable and have the right and ability to control the infringer.

The copyright owner must prove

• that the infringer had access to the copyrighted work,
• that the copy is "substantially similar" to the copyrighted work, and
• that one of the protected rights has been implicated by the infringer's actions. Remedies for copyright infringement include monetary damages, legal fees and injunctive relief.

Example:

Designer scanned photographer's copyrighted photograph, altered the image by using digital editing software, and included the altered version of the photograph in a multimedia work that Designer sold to consumers. If Designer used photographer's photograph without permission, Developer infringed photographer's copyright by violating the reproduction right (scanning the photograph), the modification right (altering the photograph), and the distribution right (selling the altered photograph in his work). A copyright owner can recover actual or, in some cases, statutory damages (which can be as high as $100,000 in some cases) from an infringer. In addition, courts have the power to issue an injunction to prevent or restrain copyright infringement and to order the impoundment and destruction of infringing copies.

A copyright holder has the following five exclusive rights:

• To copy, duplicate, transcribe, or imitate the work in fixed form (called a "reproduction right").
• To modify the work to create a new work (This is called a "derivative work" and the right is called a "modification right")
• To distribute copies of the work to the public by sale, rental, lease, or lending (called a distribution right).
• To recite, play, dance, act, or show the work at public place or to transmit it to the public (called a "public performance right.") (Sound recordings, do not include a public performance right.)
• To show a copy of the work directly or by means of a film, slide, or television image at a public place or to transmit it to the public (called a "display right"). (In the case of a motion picture or other audiovisual work, showing the work's images in sequence is a public performance right, but out of sequence is considered "display.")

Copyright protection begins as soon as an original work of authorship is "fixed" in any tangible medium of expression. That means that the work is protected even before registration, as soon as "pen is put to paper," a copyright exists.

Copyright protection exists for both published and unpublished works, and for derivations based upon an original copyrighted work.

Copyrighted works are generally protected for the life of the author plus fifty years, or, in the case of works made for hire, seventy-five years from the date of first publication, or one hundred years from the year of its creation, whichever expires first.

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Parts of this Web site were taken from Parry Aftab's book The Parent's Guide to Protecting Your Children in Cyberspace. Marvel and all character names and the distinctive likenesses thereof are trademarks of Marvel Characters, Inc., and are used with permission. TM & © 2004 Marvel Characters, Inc. All rights reserved. www.marvel.com. Super Heroes is a Co-owned registered Trademark.
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