Copyright laws are important. They have to be followed in order to reduce the chances of being sued for infringement. Learning more about copyright infringement from a small business lawyer can help you reduce the chances of having something like this happen, but also protecting yourself against copyright issues that might arise with the material you’re producing. 

Copyright infringement happens when someone uses material without permission from the person who has made the material. When someone copies, re-produces, and sells the material to gain a profit from it, when they are not the original owners of the material and do not have permission to sell it, then this can bring up hefty fines and even jail time due to breaking the laws regarding copyright infringement. 

There are two types of infringement that can occur: primary and secondary. The type depends on the specific issue that arises from using the specific material.

We will cover the information you want to know about the copyright issues that may arise from the material that you have produced, or perhaps material that you have taken and used from another source. 

Primary Infringement 

Primary infringement involves direct infringement by the person or defendant in the case. The primary person that is doing this will take the material and reproduce it. They will then either use it personally or distribute the material to others who may or may not know they are using copyrighted material that has illegally been created. 

These individuals know that they are breaking copyright laws, and they continue to reproduce and sell the material to others who may or may not know that the material has been produced for profit. These individuals are usually enforced with stricter or harsher punishments because of being in the front of knowing what they are doing and knowing it is wrong.

Secondary Infringement

Secondary infringement involves having a person facilitating another person into infringing on a copyright issue. These people give away these products that have been primarily infringed, or sell them to others. Those who purchase or get them may or may not know that these products are illegal or go against the copyright laws. 

There are even two different types of secondary infringement laws that you can be aware of, though they are not expressed in the laws specifically, they are shown in some cases. Vicarious and contributory infringement are both types of secondary infringement that can happen. 

Someone who knows they are doing something they should not be doing and producing the material in a harmful way or an intent to distribute and sell it while knowing that they are breaking these copyright laws is someone who is committing contributory secondary infringement. 

Vicarious secondary infringement happens when the main person, such as an employer makes the employee do something that violates these rules and laws without the employee knowing that this is what they are doing. When the employer profits from the employee doing this, they may be the one that is held liable for an action such as this one. This has to happen when the main person asking for the infringement to happen is the supervisor of the one who is doing the act. Usually, that person may not have any idea that they are doing something illegally, just that it has to be done for the company.

Enforcing Copyright Laws

In order to enforce copyright, the defendant must have broken the laws and there has to be proof that they did. This has to be shown in a court of law. There is usually a cease and desist order that is sent to the person that is breaking the copyright laws. If the person doesn’t comply with the first order, multiple orders may be sent to the person. If they ignore them, the owner of the material is then liable to sue. They can bring the person breaking the law to court because of this. 

The person, if found guilty, will have to pay for the attorney fees, court fees, the statutory damages, and the other losses that the person may have gone through. They are also banned from using the material again. 

The damages that are calculated is the amount that is lost during the market value of the product being sold. These charges can only be brought up when the material is protected under the copyright laws and have been registered with the Copyright office. 

What Defenses Can Be Used in Copyright Infringement Lawsuits?

Those who are being sued for copyright infringement have options. These options all depend on the context and specific background of copyright issues. The following defenses are most often used:

  • The statute of limitations is up since there is a time on this type of law
  • The copyright owner gave you a license or permission to use the product
  • You didn’t know the work was protected through copyright and there was nothing stating such
  • The work was created independently and you didn’t copy the material from somewhere else
  • The copyright material is under the doctrine of fair use, so you are legally able to use it for the specific reasons that you had, but not for profit

The defense that you have will come up with the specific case that you need to overcome the lawsuit. You can feel much more confident being able to take the next step and find the necessary help that you need when you are faced with a copyright issue. This issue is one that should be addressed, and whether you find that someone is using your copyrighted material or you have been brought to court for using copyrighted material; finding legal counsel to help you is the best way to go about it. 

For more information on infringement laws, or if you have questions regarding any laws you’re curious about, please give the Lankford Law Firm a call. They are more than happy to answer any and all questions you may have regarding the help you want and need. Every law case deserves to be heard and answered, allow them to help you. 

By: Melody Lankford
After graduating from Davidson College, Melody Lankford earned her J.D. from Florida State University’s College of Law in 2004 and was admitted to the Florida Bar that same year. Ms. Lankford joined Raydon Corporation as in-house counsel in 2004. She worked there until 2012, when she founded the Lankford Law Firm. She is an experienced Daytona Beach small business attorney who offers sound legal counsel and experience-based insights to her business clients.