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Copyright Infringement: What Is It and What You Need To Do After You’ve Been Served With A Copyright Infringement Claim

You’re sitting at home or work one day and get a snail mail letter, email, phone or call or some other way contacted by an attorney or copyright owner about infringing on his/her copyright. His/her claim may relate to a photograph on a website you own or an article you published in your newspaper/newsletter.

This notification means that without taking the proper steps to remedy the situation, whether it’s paying the copyright license fee after the fact or stopping the use of any and/or all of the content, the owner could begin a court action.  Don’t fear! Before you try validating their claim and researching all your options, the first thing you shouldn’t do is take drastic measures. It’s important you take some time to understand the claim and figure out what would be best for you and your organization.

Copyright Infringement: What Is It?

Copyright Infringement – This occurs when somebody uses someone’s work that is copyright protected without their permission. If something is copyright protected, you cannot make it available legally in any format without the express permission of the actual owner.

Determine If The Owner’s Claim Is Valid

One of the first things you’ll receive is a demand letter in legal jargon from the copyright owner’s attorney. So, the first thing you need to do is look over the materials that are subject to the claim. Are you actually using these materials? Are you using them in the manner that the demand letter claims? If you are, are they still copyright protected? Are they actually public domain? Have you obtained an assignment for them or are they licensed?

If you need permission to use the materials, have you obtained it? It’s best to have any permission you get in writing and make it a part of the database so it can be accessed easily. Be sure to check the permission or license. Can you actually use it? Have you followed the license’s terms and conditions?  Maybe the person bringing the claim against you allowed you to use something for a short period of time but you have forgotten to remove it after a year. Once the given time period has experienced, you might be in violation of copyright infringement.

The license might state that a specific number of persons can have access to the content. For instance: a business may have the right to post an article on brand management on its website for a certain period of time.  According to the license, you need to ensure that the website is password-protected and will only give out 50 passwords. 

If your business keeps it longer than the allotted time or it’s viewed by more than 50 persons, you would be in violation of your licensing rights and could be subjected to a copyright infringement claim or a breach of contract claim; possibly both.

A Look At Fair Use: How You Can Use It In A Copyright Infringement Claim

When you’re facing a copyright infringement claim, you could possibly use the fair use defense.  Be sure you check out with the national law says on fair use. It can be very confusing to use and apply the fair use provision of Section 107 in the United States Copyright Act to particular uses of material that’s copyright protected.

It will need to be applied on the basis of the case with non-judges and non-lawyers trying to determine what is and what is not fair use. Most folks don’t want this kind of responsibility. And, it can get very expensive to obtain a legal answer from an attorney every time you want to use the fair use defense on a certain piece of content.

Fair use is mainly for use of copyright protected work for education, commentary, news reports, parody and research.  According to the U.S. Copyright Act, there are four factors to assist judges in determining if something is usage. These factors relate to:

- Character and purpose for the use including whether it’s for non-profit, commercial, educational
- Nature of copyright-protected work
- Substantially and amount of used portion to the copyright work
- Effect of use on the market for the value of copyright-protected work

Commercial uses tend to be less thought of as fair use.

Some examples of fair use usage include: 

- Quotation of excerpts in reviews or criticism for commentary purposes
- Quotation of short passages in technical or scholarly work for clarification of author discussions
- Reproduction of material for classroom use where reproduction is not anticipated and spur-of-the-moment such as an article appearing in the morning paper that relates to that day’s class subject


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