Copyright Infringement Penalties

What Happens When You Violate Trademarks and Service Marks?

After months at the drawing board, there’s nothing more infuriating than having your work claimed and reproduced by someone else. Luckily, copyright laws are in place to protect creators and their unique works from such a situation. Infringement upon one’s protected intellectual property can result in civil, and even criminal, penalties.

What Constitutes Copyright Infringement?

Not every use of copyrighted material is considered a violation. For the offense to be infringement:

• The creator must have a valid copyright
• The infringer must have access to the copyrighted work
• The use of the copyrighted material must not fall under one of the listed exceptions

What Are the Exceptions to Copyrights?

Intellectual property can legally be utilized if it falls under one of three exceptions: face-to-face instruction, virtual instruction, or fair use.

Through face-to-face and virtual instruction, teachers and students can use performances and displays of works freely so long as they are legally acquired and taught in a classroom or other place dedicated to instruction. Fair use, however, is more difficult to define.

Fair use depends on four factors:

• Purpose and character: Use is typically considered fair use if it is used for nonprofit, educational, or personal purposes of teaching, research, scholarship, criticism, commentary, or news reporting.
• Nature of work: Factual, published works are more commonly considered fair-use than fictional unpublished ones.
• Amount of work used: Use of a portion of a work is more commonly decided to be fair use than utilization of a complete piece of intellectual property.
• Market effect: Use is often regarded as fair when it has minimal impact on the market, when there is no licensing available, when there is limited access to the work, or when the user owns a legal copy of the work.

The usage typically must be considered fair by each of these judgement criteria to be exempt from copyright infringement penalties. If it is only deemed fair by one guideline, it is likely not a fair application of the work.

The Legal Penalties

If copyrighted material is not used for teaching or some other fair use endeavor, its utilization is subject to legal consequences. The infringer could face:

• Imprisonment for up to 180 days
• Fines for the amount actual damages, or the amount of profits the creator lost
• Fines for statutory damages, which can be up to $150,000 for each work that was willfully infringed upon
• Court and attorney fees incurred by the other party

If you’ve had a stroke of genius, it’s imperative that you take the time to legally protect it, and, with it, your access to earned revenue and recognition. Contact Scaringi Law today for help establishing a trademark or copyright.