Copyright infringement is a serious concern in the creative industry, affecting both creators and users of copyrighted material.
This is why it’s important to understand the elements of copyright infringement to effectively protect creative works, avoid legal violations, and uphold intellectual property rights.
This article will guide you through the four key elements of copyright infringement and provide real-world examples to emphasize the seriousness of this issue.
- Copyright Infringement can occur through various means, such as copying, distribution, adaptation, or public performance of a material without the copyright owner’s permission.
- For a work to receive copyright protection, it must be fixed in a tangible medium of expression.
- Copyright ownership can be transferred or assigned to another party through agreements, contracts, or by operation of law.
Table of Contents
4 Key Elements of Copyright Infringement
Copyright infringement refers to the unauthorized use, reproduction, or distribution of copyrighted material, violating the exclusive rights granted to the copyright holder.
Understanding copyright infringement is important for both creators and users of creative works. There are four main elements of a copyright infringement case to consider: originality, fixation, ownership, and violation.
These elements define what is protected under copyright law and who has the right to use and distribute creative works. Let’s explore these elements to understand how copyright works in practice.
1. Originality
Copyright law protects original works of authorship. Originality means that the author must independently create the work and possess some degree of creativity.
This doesn’t mean that the work must be entirely unique or novel, but rather that it must reflect the author’s intellectual effort and not merely copy someone else’s work. Courts often assess originality by considering whether the work exhibits a spark of creativity beyond a mere mechanical reproduction of facts or ideas.
2. Fixation
For a work to receive copyright protection, it must be fixed in a tangible medium of expression. This means that the work must be embodied in a concrete form that is sufficiently permanent or stable to permit it to be perceived, reproduced, or communicated for a period of more than transitory duration.
Fixation can take various forms, including writing, recording, filming, or saving to a digital file. Without fixation, copyright protection cannot apply because copyright law protects the expression of ideas rather than the ideas themselves.
3. Ownership
Copyright protection initially rests with the author or creator of the work. However, ownership can be transferred or assigned to another party through agreements, contracts, or by operation of law.
Determining ownership is important because only the rightful owner of the copyright has the authority to exercise the exclusive rights granted by copyright law. It’s essential to identify the author or creator of the work and any subsequent transfers of ownership to determine who holds the copyright.
4. Violation
Copyright infringement occurs when someone violates one or more of the exclusive rights granted to the copyright owner under the law, indicating a breach in the ownership of a valid copyright.
Infringement can occur through various means, such as unauthorized copying, distribution, adaptation, or public performance of the copyrighted material. Courts consider several factors in determining whether infringement has occurred, including the nature of the use, the amount and substantiality of the portion used, and the effect of the use on the potential market for the copyrighted work.
Real-World Examples of Copyright Infringement
Now, let’s delve into real-world examples of copyright infringement to illustrate the practical implications of copyright law in everyday scenarios. These examples will shed light on the importance of adhering to copyright regulations and the potential consequences of infringement.
1: Music Sampling Without Permission
In a recent case involving the Filipino musician Shaira and her production team, AHS Channel, the unauthorized use of a sample from Australian singer-songwriter Lenka’s song “Trouble Is A Friend” sparked controversy and legal action.
Shaira’s viral song “Selos” drew attention from netizens who pointed out its resemblance to Lenka’s track. Despite the song’s popularity, Lenka and her team took swift action, demanding that “Selos” be removed from streaming platforms due to the unauthorized sample.
The outcome of this case emphasizes the importance of clearing samples before incorporating them into new compositions. Shaira’s team was forced to take down “Selos” from online platforms and issue apologies to fans.
They are now in negotiations with Lenka’s team to secure the necessary licenses and make “Selos” an official cover. This process highlights the potential legal and financial repercussions of using samples without proper authorization, including damage to reputation and loss of revenue.
This case shows the necessity of obtaining licenses and permissions when using samples from other artists’ works. Failure to do so can lead to legal disputes, costly settlements, and damage to professional relationships. Clearing samples not only ensures legal compliance but also respects the rights and contributions of original creators.
2: Reposting Artwork on Social Media
In August 2018, New York-based photographer Robert Barbera filed a lawsuit against the singer Ariana Grande, alleging copyright infringement over two photographs she posted on her Instagram without his permission. The photographs in question depicted Grande carrying a bag emblazoned with the name “Sweetener,” coinciding with the release of her fourth studio album of the same title.
Despite Barbera’s copyright registration for the images with the U.S. Copyright Office, Ariana shared them with her 3.3 million Instagram followers, garnering significant engagement before eventually deleting the post. This led to Barbera filing a lawsuit seeking damages of $25,000 for each photo.
The settlement, reached on July 18, brings closure to the legal battle. While the terms were not disclosed, court documents indicate that all claims have been settled, leading to the dismissal of the case without costs.
This legal battle underscores the significance of comprehending copyright law and adhering to proper protocols when sharing others’ work on social media platforms. Ariana Grande’s actions rendered her liable for infringement as she posted Barbera’s photographs without obtaining permission or a license from the copyright owner.
Respectful sharing of others’ work on social media requires diligence and adherence to copyright law. Obtaining explicit permission from the copyright owner is the most important, whether through direct communication or obtaining a license through a recognized agency.
Additionally, utilizing content that is explicitly labeled as royalty-free, public domain, or licensed under Creative Commons with proper attribution is better than risking copyright violations.
In situations where explicit permission is not feasible, such as with widely shared memes or viral content, it’s crucial to avoid reposting or sharing the content without proper authorization.
Ariana Grande’s case reminds individuals and influencers alike about the legal consequences of unauthorized use of copyrighted material on social media platforms.
3: Using Copyrighted Characters in Merchandise
In 2017, there was a notable case involving the owners of the “Mr. Men and Little Miss” franchise taking legal action over the sale of tasteless “Mr. Jihad” t-shirts. The “Mr. Men and Little Miss” series, created by British author Roger Hargreaves, features a wide array of colorful characters known for their distinct personalities and appearances.
The controversy arose when unauthorized merchandise appeared online featuring a character named “Mr. Jihad,” a parody of the iconic “Mr. Men” characters, wearing a bomb-shaped turban and wielding dynamite sticks. The sale of these t-shirts prompted immediate backlash due to the offensive nature of the parody, which trivialized serious issues like terrorism and religious extremism.
The copyright holders of the “Mr. Men and Little Miss” franchise, Sanrio, which acquired the rights to the characters in 2011, and the Hargreaves family were quick to respond. They announced their intention to take legal action against the producers and sellers of the “Mr. Jihad” merchandise for copyright and trademark infringement.
This case exemplifies the efforts of copyright holders to protect their intellectual property rights and prevent the unauthorized and offensive use of their characters. The use of the “Mr. Jihad” character not only infringed on the copyright and trademark of the original “Mr. Men” characters but also created significant reputational damage to the franchise due to the insensitive nature of the parody.
Legal actions in cases like this typically involve cease and desist letters demanding the immediate cessation of the sale of the unauthorized merchandise. If the sellers fail to comply, further legal measures, such as litigation for copyright and trademark infringement, may ensue.
In many cases, these legal actions result in injunctions against the production and sale of the infringing merchandise, as well as potential financial damages for the infringing parties.
Ultimately, this case underscores the significance of honoring intellectual property rights and highlights the potential repercussions of producing and selling unauthorized merchandise that violates those rights, especially when it involves sensitive or offensive subject matter.
4: Unauthorized Use of Photographs in Blog Post
In a landmark ruling, artist Richard Prince has been ordered to pay damages to photographers involved in copyright infringement lawsuits over his “New Portraits” series. The legal battle, which spanned nearly a decade, has finally concluded with Prince and his galleries collectively ordered to pay the photographers a total of $900,000 in damages.
The dispute arose from Prince’s controversial “New Portraits” series, which featured enlarged screenshots of Instagram posts, often without the photographers’ consent or proper attribution. Prince’s appropriation of these images sparked outrage within the photography community, igniting a debate about the boundaries of fair use and artistic expression in the digital age.
Photographers whose works were appropriated by Prince filed multiple lawsuits against him and his galleries, alleging copyright infringement and seeking damages for unauthorized use of their images. The lawsuits argued that Prince’s actions violated their exclusive rights as copyright holders and undermined the value of their creative work.
After years of legal proceedings and contentious debates, the courts have now ruled in favor of the photographers, holding Prince and his galleries accountable for copyright infringement. The $900,000 in damages awarded reflects the financial harm caused to the photographers by Prince’s unauthorized use of their images for commercial gain.
While the case centered on Prince’s appropriation of Instagram portraits, its implications extend beyond this specific instance, serving as a precedent for future disputes involving the unauthorized use of online content.
5: Copying Website Content
The New York Times has initiated legal action against OpenAI and Microsoft for alleged copyright infringement, asserting that the two companies utilized millions of articles from the publication’s website to develop their AI models.
The lawsuit claims that OpenAI and Microsoft’s AI models, which power ChatGPT and Copilot, can create content similar to The New York Times’ articles, competing directly with its original content. This damages the Times’ relationship with readers and causes financial losses by reducing revenue from subscriptions, licensing, advertising, and affiliates.
The lawsuit argues that these AI models threaten journalism integrity by allowing companies to use the Times’ journalism to develop new products without permission or payment.
The Times seeks billions in damages and wants the court to stop OpenAI and Microsoft from using its content. Additionally, the publication seeks the removal of its work from the companies’ datasets.
The lawsuit highlights the potential for copyright infringement lawsuits and shows the importance of creating original content. OpenAI and Microsoft’s AI models, as alleged in the lawsuit, mimic The New York Times’ articles, raising concerns about intellectual property rights.
Creating original content is important not just to follow the law but also to protect journalism’s integrity and make sure content creators get paid fairly. The lawsuit shows that using copyrighted material without permission can cause big financial losses and harm a company’s reputation.
Frequently Asked Questions
How does copyright infringement occur?
Copyright infringement can occur in various ways, such as copying text, images, music, or other creative works without permission, distributing unauthorized copies, performing copyrighted works publicly without a license, or creating derivative works without authorization.
What constitutes “substantial similarity” in copyright infringement cases?
Substantial similarity refers to the extent to which the allegedly infringing work is similar to the original copyrighted work. This similarity is assessed based on the qualitative and quantitative significance of the copied elements and whether they are protectable under copyright law.
Can unintentional infringement still be considered copyright infringement?
Yes, unintentional infringement can still be considered copyright infringement if the accused party reproduces, distributes, or uses copyrighted material without proper authorization, regardless of intent.
Can using a small portion of copyrighted material still be considered infringement?
Yes, using even a small portion of copyrighted material without permission can still constitute infringement if it is a significant part of the original work or if it impacts the market value of the copyrighted material.
How can copyright infringement be avoided?
Copyright infringement can be avoided by obtaining proper licenses or permissions before using copyrighted material, creating original works, conducting thorough research to ensure material is in the public domain or covered by fair use, and respecting the rights of copyright owners.
