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Episode 65

E65: Understanding Copyright Infringement: What Happens When You Cross the Line

In this episode of Hourly to Exit, we delve into the topic of copyright infringement. Copyright infringement occurs when someone violates the exclusive rights of a copyright owner. These exclusive rights include the right of reproduction, adaptation, distribution, public performance, public display, and translation.

The penalties for copyright infringement can vary, ranging from embarrassing situations that require apologies and cleanup, to more serious legal consequences. In the worst cases, copyright infringers can be criminally prosecuted.

This episode is the first of a three-part series covering copyright infringement. In part one, we discuss the remedies and penalties that apply when a copyright is infringed. Part two focuses on how to avoid being a copyright infringer. Part three explores ways to prevent your own copyrights from being infringed.

Tune in to Hourly to Exit to learn more about copyright infringement and how to protect your intellectual property.

Connect with Erin to learn how to use intellectual property to increase your income and impact. hourlytoexit.com/podcast.

Erin's LinkedIn Page: https://www.linkedin.com/in/erinaustin/

Think Beyond IP YouTube Page: https://www.youtube.com/channel/UCVztXnDYnZ83oIb-EGX9IGA/videos

Music credit: Yes She Can by Tiny Music

A Team Dklutr production

Transcript
Erin Austin:

Hello, ladies.

Erin Austin:

Welcome to this week's

Erin Austin:

episode of hourly to exit.

Erin Austin:

Now we talk a lot about

Erin Austin:

protecting our expertise

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through copyrights and

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contracts, owning and

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controlling the fruits

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of our expertise, aka

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intellectual property.

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Is the key to creating a

Erin Austin:

scalable and salable business.

Erin Austin:

Similarly, it is our

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duty to respect the

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rights third parties

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have in their materials.

Erin Austin:

The thought leaders that

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we follow, the coaches

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that we learn from, the

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property of our prior

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employers and of our clients.

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These are all examples of

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intellectual property that we

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come across and that we may

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refer to in our own materials.

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We may.

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Use in providing services

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to our clients, but

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whether through negligence

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or ignorance, if we use

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other parties copyrighted

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material without permission,

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we may be guilty of

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copyright infringement.

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At best.

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It is embarrassing.

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We need to apologize.

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We may need to clean up

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a mess that we've made.

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Maybe we've delivered

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something to a client that

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we didn't have rights to.

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At worst, though, we

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can get into a fair

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amount of trouble under

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intellectual property laws.

Erin Austin:

So this is the first of

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a three part series about

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copyright infringement.

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In this part one, I'll talk

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about what happens when

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a copyright is infringed.

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In part two, I talk

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about how to avoid being

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a copyright infringer.

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And finally, in part three,

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we talk about ways to

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prevent your copyrights

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from being infringed.

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So first, what Constitutes

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copyright infringement.

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Copyright infringement

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occurs when a party violates

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any of the copyright

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owner's exclusive rights.

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As you recall, copyright

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provides a bucket exclusive

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rights to the copyright So

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when you are the creator of

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an original work, you have

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an exclusive set of Rights

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that allows you to control

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your creations, how they're

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used and the exclusive right

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to earn compensation from

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them, the exclusive right

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to benefit from their use.

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So, briefly, those buckets

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of rights include the

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right of reproduction.

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That's the right to make

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copies of the protected

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work in any form, not just

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imprinted copies or books,

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but also digital downloads.

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Just making a copy and,

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pasting it somewhere

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else in the internet.

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That is exclusive right of

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the copyright owner, the

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right of adaptation also

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called derivative rights.

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So that's the right to

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modify the work so you can

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create a new work from it.

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That new work is a derivative

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of the original one, and

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that is still owned by the

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original copyright owner.

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And so an example of

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that would be turning a

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book into a screenplay.

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and even turning a screenplay

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into a movie is actually

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another, derivative, right?

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The right of distribution.

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So that's the right to

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distribute the copies publicly

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for sale or for license.

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And so that is, actually

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separate from the

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right of reproduction.

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the right of reproduction

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applies whether or

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not that's for sale.

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so the right of

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distribution, generally.

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It refers to the sale or

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licensing of the material, the

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right of public performance.

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So that would be the right to

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publicly perform to, read your

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novel out loud to, dance your

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dance in public, to perform

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the play that you wrote.

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so any performance based

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works, you have an exclusive

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right to public performance.

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The right to public display.

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This typically refers to

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art, the right to publicly

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display your art is, that of

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the copyright owners, think

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about, the artwork you may

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have in your home that is

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original art and you own that.

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Piece of artwork, but you

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don't actually have the

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right to publicly display it.

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the copyright owner has

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the right to do that and

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similar to derivative rights,

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the right of translation.

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So to translate your work

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into other language, or

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to authorize a 3rd party

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to do any of the things

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that we talked about.

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also the exclusive right

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of the copyright owner.

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So.

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when there's a valid copyright

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involved and there has not

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been authorization from

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the copyright owner, an

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infringement when, both of

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these following are present.

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First, the infringer has

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actually copied, you have

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to actually have copied

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the copyright owner's work.

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sometimes, someone will

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accuse someone of copying

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their work, but guess what?

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There's no way they could

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have had access to it.

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it's been under lock

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and key in my drawer.

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I mean, it's kind of

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nutty, but people actually

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do say, Oh, my God, this

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is exactly what I wrote.

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But no one's ever seen their

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manuscript it's never been

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published Maybe they sent

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it to agent at some point,

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but that they never did

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anything with it because

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it, they didn't want it.

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And somebody else write

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something and it seems

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an awful lot like it's

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been copied, but did

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they actually copy it?

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Did they actually have

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access to That original

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work that they're

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claiming was infringed.

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So there has to be actual

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copying and then they have

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to have copied enough of it

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to give rise to liability.

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So, taking a little

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snippet here and there,

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Does not generally

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give rise to liability.

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Now, if it's an haiku,

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and you took a line out

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of haiku, then, that could

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give rise to liability.

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But, taking a sentence out

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of an entire manuscript

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probably would not.

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So, as you can tell,

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this is not a cut and dry

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analysis, the particulars

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of the activity Will

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determine whether or not

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there has been infringement.

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So, let's take the

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traditional case of,

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let's just say there's a

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single work and, they did

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not copy it literally.

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or it's in its entirety.

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So, when you have that

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circumstance, you're

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going to have to have

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a fact finder, which.

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Is a court of law to

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figure out whether or not,

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there was a copying that

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gives rise to liability.

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in that circumstance where

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they haven't literally just

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lifted the whole thing and

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copied it and put their name

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on it, which people do, but

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generally, subtler than that.

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They have been so heavily

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influenced by it that It

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is considered substantially

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similar and that in that case,

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generally, we would need a

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court of law to determine

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that and whether or not

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there'd be liability there.

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So, what we need to remember

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is that the fact that we own.

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A copy of that copyrighted

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work does not grant to us

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any of the exclusive rights

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that the copyright owner has.

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So, again, they have

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the right to reproduce

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it and to distribute,

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perform it, display it,

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adapt it just because I

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have a copy of a book.

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I don't have any of those

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rights of the copyright

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owner just because I have.

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A piece of artwork.

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I do not have any of those

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rights of the copyright owner.

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So some examples of

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copyright infringement

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that unfortunately happen

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to frequently piracy,

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that's downloading

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or distributing of.

Erin Austin:

Copyrighted songs or

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movies or TV shows

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without authorization.

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And that would include, even

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if all you're doing is taking

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them and uploading them

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to YouTube, even if you're

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not personally, getting any

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money from it, you don't have

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the right to, make copies.

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And distribute somebody else's

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copyrighted works, right?

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reproducing artwork.

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So making copies of

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paintings or photographs or

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graphics without permission

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Selling them or displaying

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them So a lot of times

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this happens where people

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will find an image on the

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internet And they put it

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on their website without

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permission if you don't have

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permission to use What would?

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Fall into a category of

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copyrighted works, then

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you should assume that

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somebody owns them and

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you need to get permission

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for, reprinting of eBooks,

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especially because it's so

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easy to do, to just download

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something and, offer it.

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Even if you're offering it

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for free, if it's not yours,

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that would be an infringement.

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sampling, I mean, we've

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all heard about, famous,

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Litigation regarding someone

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sampling someone's music,

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and without getting clearance

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from virtual creators.

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We know that can be a

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huge, huge liability,

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unauthorized adaptations.

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This one happens in

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the business world.

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know, I do get questions

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about, hey, there's this.

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Book and I want to create

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a workbook based on this

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book, or I want to create

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a course around this book.

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and so those would be

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considered unauthorized

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adaptations if you don't

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have permission from the

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copyright owner of that.

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Work and then website

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content, you again, people

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tend to think that things

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on the Internet are just

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free and they are not.

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So, lifting somebody

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else's website content.

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I think crazy when I hear

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that entire websites have just

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been lifted and they give it

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a new URL and they go to town

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with someone's entire website.

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and so obviously that would

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be a copyright infringement.

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So remedies, remedies

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that are available against

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a copyright infringer.

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So the primary remedy

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are monetary damages,

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money damages.

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So the aim of monetary damages

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is to Compensate the copyright

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owner for the losses that they

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incur due to the infringement.

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So there's one, the loss

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that the copyright owner

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has, but also they want

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to the profits that the

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infringer may have realized.

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Like you don't get to get.

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Profits from my materials

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and so the monetary damages

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could be the actual damages

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that the copyright holder

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suffered as a direct

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result of the infringement.

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So that might be the lost

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sales or lost licensing fees.

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let's say you, generally,

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I'm sell, a hundred books per

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month and somebody else has

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stolen it and now suddenly

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you're not making any sales,

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those would be actual damages

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that loss of the sales

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that you would typically

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have made had they not.

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Infringed your copyright.

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similarly, the

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profits attributable

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to the infringement.

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So let's say, they stole

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your book, but somehow

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they were able to sell even

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selling it for 50 bucks.

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Each.

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They're able to sell

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it for 100 bucks.

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Each.

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Well, you get the profits

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from their 100 dollar,

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per uh, sale profits.

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and that's just to make

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sure that the infringer

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does not benefit financially

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from their activities.

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Under the U.

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S.

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laws, there are

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statutory damages.

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So statutory damages are

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preset amounts that are set

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forth under the law that the

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copyright holder can opt to

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receive instead of proving

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actual damages or profits.

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So let's say you just

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have stuff that's for

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free on your website.

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you have free eBooks

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that you give away

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that are lead magnets.

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and so you can't tie

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directly any actual

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financial loss to it.

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You can't say, okay,

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this is the dollar amount

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and the other person

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didn't sell it either.

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They just took it

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and used it as free.

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Magnet themselves.

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so there's not profits

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directly attributable

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to that infringement,

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but you have statutory

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damages that you can get.

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So you can just go and say,

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Hey, they copy my white paper.

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They, distributed

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hundred of them.

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and so I, by statute get.

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can range from a couple

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hundred dollars per work to,

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tens of thousands, depending

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on the circumstances of

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that infringement, but you

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don't have to prove, lost

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sales or prove profits on

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the part of the infringer.

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So that's very

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valuable as well.

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And, of course, all these

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things require registration

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the copyright we're not

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talking about copyright

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registration here.

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But all these remedies require

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that your copyright work was

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registered in some cases,

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you can get attorneys fees.

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I mean, suing people requires

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lawyers and lawyers cost

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money litigation is expensive.

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And so to be able to get.

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your attorney's fees and cost

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of infringer having to pay

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for them, are those that's

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among the remedies for the

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infringement and maybe some

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additional damages for really

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egregious behavior, someone's

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just just a habitual.

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Infringer, they may have

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putative damages that

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can be multiples of what

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the actual damages are.

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if you are selling licensing,

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revenue generating, works,

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you know, I always recommend

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that any revenue generating

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work should be registered and

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then keeping records of those.

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I imagine you would be if

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the revenue generating,

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but those records would

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be the basis of for your

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monetary damages claims in

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the event of infringement.

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And then in addition to

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money damages or monetary

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damages, there are things

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like injunctive relief.

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So an injunction stops

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someone from doing the

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infringing activity.

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So, you would get an

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injunction to say, you

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Take the white paper off

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of your website, or if

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someone infringed your,

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right of adaptation, they

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used your book as the

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basis of a course, you can.

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Cause them to take down

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the course and stop

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distributing the course.

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and speaking of takedowns,

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there's a thing called the

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digital millennium copyright

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act with takedown notices.

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And so let's say you

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are surfing the internet

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and you see something

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of yours on somebody's

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website, know, there is

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a process for you just to

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send a takedown notice.

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You don't have to get

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a lawyer for this.

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And you send to that

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internet, to the website.

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owner.

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Hey, somebody posted my

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materials on your website.

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You send a takedown notice.

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You, you tell them,

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you know, this is

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mine, blah, blah, blah.

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And then they are required

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to take that down.

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and then, you if it's

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something that is a physical

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copy, like physical books

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that are infringing.

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they're be impounded or

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require the destruction

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of those articles.

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if it's something that's

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coming from overseas,

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they can capture them at

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the border, generally not

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applicable to what we do.

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but still important,

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remedies in the event

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that those things happen.

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So what we just talked

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about were all civil

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penalties in the event of

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a copyright infringement.

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So, the question

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is, are there also.

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Criminal copyright

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provisions, and yes, there

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are the Copyright Act does

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have criminal provisions.

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copyright infringement

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can be a crime.

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So it is a criminal

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offense when we willfully

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infringe a copyright.

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So if it's willfully

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committed, and it's for,

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financial gain for commercial

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advantage, that Can be

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criminal, especially when

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the value of that commercial

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game goes up, the steeper the

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criminal penalties are, and

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so you can, in addition to

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Being sued civilly, you can

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also be prosecuted criminally

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for the same infringing act.

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in terms of elevating

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something from kind

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of civil liability to

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criminal liability.

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courts have found

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willfulness when a defendant

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was given legal notice.

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That his conduct was

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infringing or when he

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had noticed that it was

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illegal, and that they

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continue to do it anyway.

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So for example, you

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repeatedly take your

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camera phone into advanced

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screenings of movies and

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record it and put it online.

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And then, you you're

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known for that.

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You've been getting cease

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and desist orders from

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near the movie studios.

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You keep doing it.

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The court will likely see

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your actions as being willful.

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You're intentionally.

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there's no negligence.

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There's no even ignorance,

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you know, exactly

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what you're doing.

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you can be criminally

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charged for that.

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other things that may, be

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considered criminal offenses.

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If you put like a fraudulent

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copyright notice on something,

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so, you know, something is

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not yours, but you claim

Erin Austin:

it and you put a copyright

Erin Austin:

notice on it and claim

Erin Austin:

it, that can be, fraud.

Erin Austin:

Removing a copyright notice

Erin Austin:

on something for fraudulent

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intent, like for some

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reason, something has a

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copyright notice on it.

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Maybe you're trying to

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sell it as your own.

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And so you take off the other

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person's copyright notice, in

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order pass it off as your own.

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That can be, Criminal

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offense, making a false

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representation of a material

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fact on the application

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for copyright registration.

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When you file a copyright

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registration, you are

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asked to represent that.

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It is original that you

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are the proper owner.

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this will be, significant

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in the face of, AI

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generated materials.

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You need to state honestly,

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What the origin of the

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material that you're applying

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for copyright registration for

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and say, if you're knowingly

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making false statements

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on that application,

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you could be criminally

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prosecuted for that.

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and then willfully,

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and for the purposes of

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commercial advantage or

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private gain, I mean, is

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circumventing technological,

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protection measures, which

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is something that we'll

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actually talk about in the.

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Third one where we talk

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about ways to, avoid, having

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your copyright infringed.

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But example of that would

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be like watermarking.

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Like sometimes you will see,

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images on the internet that

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has a watermark behind it.

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You can't just use it.

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so there are things that you

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can put on something so you

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can detect, the origin of

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material, if someone were to

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steal it and distribute it.

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circumventing can be

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considered willful.

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and therefore, a

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criminal, offense.

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the penalties for criminal

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copyright infringement include

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prison time and large fines.

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So a first time offender

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who's convicted of making

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unauthorized reproductions

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or distributing at least 10

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copies of a work during 180

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day period with a retail

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value of 2500 or more.

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Can be in prison for up

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to five years and find

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up to 250, 000 or both.

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If you've previously been

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convicted of criminal

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copyright infringement so

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you're a recidivist, you

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can be sentenced up to a

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maximum of 10 years in prison

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of the 250, 000 in fine.

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Or both and then for

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misdemeanors up to 1 year

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in prison and a maximum

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fine of 100, 000, which

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is not insignificant.

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that is our overview of.

Erin Austin:

Copyright infringement, what

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it is, the civil penalties

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and the criminal penalties

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for copyright infringement.

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And so, join me in

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the next session.

Erin Austin:

We will talk about how to

Erin Austin:

make sure you are not guilty

Erin Austin:

of copyright infringement.

Erin Austin:

Thanks guys.

Erin Austin:

See you next time.

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Erin Austin

Meet Erin Austin, a Harvard Law alum with over 25 years of copyright and contracts experience. As the go-to advisor for professionals with corporate clients, Erin empowers entrepreneurs to be their own advocates, standing out for her commitment to transforming expertise into empires through the creation, protection and leveraging of intellectual property assets. Explore her blend of legal expertise and entrepreneurial insight on ThinkBeyondIP.com and the "Hourly to Exit" podcast. Off the clock, you'll find Erin in the great outdoors or connecting with business coaches to elevate 6-figure consultants into 7-figure powerhouses.