Copyright Infringement

It is a widely held misconception that works on the Internet are not covered by copyright and thus can be used freely. This is not true. Copyright law applies to online material just as it does to offline material, assuming the prerequisites for copyright protection are met. Thus, if you use someone else's work, you could be liable for what is called "copyright infringement." Basically, copyright infringement exists if you exercise one or more of the exclusive rights held by a copyright owner. A copyright owner enjoys the following exclusive rights:

  • to reproduce the work in copies
  • to prepare derivative works based upon the work
  • to distribute copies of the work to the public
  • to perform the work
  • to display the copyrighted work
  • and, in the case of sound recordings, to perform the work publicly by means of a digital audio transmission

See Rights Granted Under Copyright for more discussion.

In order to bring a successful claim of copyright infringement in the context of copying on a blog or website, the plaintiff must generally prove:

  1. That she is the owner of a valid copyright in the work or has the legal authority to bring a lawsuit;
  2. That the defendant actually copied the copyrighted work, either by direct evidence of the copying or evidence that shows: (a) the defendant had access to the original work and the defendant's work is substantially similar to the copyrighted work, or (b) the defendant's work has a striking similarity to the copyrighted work; and
  3. The copied sections of the work are protected by copyright (i.e. not merely copying facts from the copyrighted work)

If the defendant is found liable for copyright infringement, the copyright holder will be entitled to recover his or her actual damages (e.g., lost profits) or, if certain conditions are met, statutory damages between $750 to $30,000 per infringement.  If the plaintiff can prove the infringement was willful, the statutory damages may be as high as $150,000 per infringement. 

Defenses

There are three common defenses available to defendants who are faced with a copyright infringement claim:

  • The work used is not covered by copyright (i.e. characterize the work as being factual only, without any expressive element).

  • The defendant independently created the work herself. As discussed above, any claim of infringement must involve the defendant's use of an unauthorized copy of the plaintiff's work. Thus, infringement cannot occur in the absence of the defendant's copying the plaintiff's work. Additionally, no provision of copyright law bars another author from independently creating a work that is remarkably similar to another.

  • The use is a fair use. The doctrine of fair use is the third, and most oft-cited, defense. The courts and Congress adopted the fair use doctrine to permit uses of copyrighted materials considered beneficial to society, many of which are also entitled to First Amendment protection. Fair use will not permit you to merely copy another’s work and profit from it, but when your use contributes to society by continuing the public discourse or creating a new work in the process, fair use may protect you. Refer to our section on fair use for a more in-depth discussion on the doctrine.

Note that the infringing use of a copyrighted work cannot be cured by attribution (i.e. citing the copyrighted work). While citing to the original source is always a good idea, attribution will not protect you from a claim of copyright infringement.

Copyright v. Plagiarism

Plagiarism is the act of using another's work and passing it off as your own. While such a use could open you up to a copyright infringement claim, there is no legal liability associated with the act of plagiarism.

Nevertheless, it is a good idea to avoid plagiarism. The best way to avoid plagiarism is to adequately cite your work. Depending on the nature of your online work, your citations can be informal in style, or adhere to the more formal citation conventions. See the University of Iowa's Guide to Citation Style Guides, and Yale College's guide to citing blogs for more information.

Since plagiarism and copyright infringement are similar concepts, a few examples may be helpful:

  • If an author publishes a poem on his blog in which he substantially copies from Dante's Inferno but passes off the words as his own, he has committed plagiarism. However, the author has not committed copyright infringement because Dante's work is in the public domain.
  • In contrast, if a website owner publishes a compilation of contemporary short stories on her website without the permission of the original authors, she would be liable for copyright infringement, even if the compilation properly notes the original authors and thus avoids plagiarism.
  • Finally, if a journalist uses content from yesterday's daily newspaper as his own original article in a weekly online magazine, the journalist has committed both plagiarism and copyright infringement.