Copyright and Trademark Infringement: Someone’s Stealing From Me!
You go to all that length to protect your copyrights and trademarks, but someone is still using your work or logo without your permission!
Don’t feel too bad, it's sort of backhanded compliment - what you have must be worth copying, right!? Still most people I speak with tell me that identifying copyright infringement gives them a similar feeling to having personal property stolen. The human psychology around these cases very much mimics the feelings people have in traditional theft or criminal cases. Copyright infringement however is not a criminal offense; it's a civil offense. This means the infringer is more likely to face statutory fines and royalty damages than jail time, unless the infringement is coupled with a more serious offense.
Even if you don't feel this way, do you want to sit there and just let someone else profit off your work? No, of course not! That money is yours by law and you're entitled to it. You're also entitled to your copyrights that give you the power to demand credit or permission.
Depending on whether it’s copyright or trademark infringement, the requirements for proof will be different. In either scenario, your ability to recover damages will depend on how well protected your work(s) was initially.
In this post, we’ll cover the basics you should know about copyright and trademark infringement including how infringing on a copyright is different than infringing on a trademark. We’ll briefly discuss the legal elements of each, what you’ll need to prove in court, and what legal options you have if you can prove you were the victim of infringement.
What is Infringement?
Infringement typically refers to the unauthorized use, copying, distribution, or exploitation of someone else’s intellectual property rights. To “exploit” simply means “to profit from”.
An intellectual property owner is given certain exclusive rights. An infringer violates a right that was supposed to be the exclusive right of the lawful owner. To the IP owner, there are real consequences including lost sales, unfair market competition, or as often the case, a loss of brand or personal reputation. For brand owners, this is a serious consequence.
Copyright Infringement
A copyright owner enjoys an exclusive bundle of rights in his or her original work. There are eight rights listed under USC Title 17 (which is where you can find all the authoritative law on copyrights). Copyright infringement occurs whenever someone violates any of the exclusive rights of a copyright owner without first obtaining permission.
Infringement can take various forms, including:
a) Unauthorized Reproduction - making copies of works without the owner's permission.
An easy example is when someone duplicates a musician's song or album without a license (remember burned CDs and Napster?)
b) Distribution - distributing copyrighted works without proper authorization
A common example is a copyrighted DVD sold in bulk internationally and without proper licensing. This violates a copyright in the right to distribution.
c) Derivative Works - creating a new work largely based on copyrighted material
If you've borrowed essential elements of another person's work and failed to gain permission, then you have violated the copyright’s owner exclusive right to create derivative works.
For example, you couldn’t write a The Simpsons-spinoff about character Ned Flanders without first obtaining permission from the original show creators (presuming they still have ownership in the copyright of all the show’s characters).
And that’s just three of the eight exclusive rights enjoyed by a copyright owner. To prove infringement, you’ll have to show conclusively that one of these rights is being violated.
Proving Copyright Infringement
You must prove an exclusive right is being violated or infringed by proving certain legal elements of copyright infringement. Since I don’t want to bore you with lengthy explanations of each element, I’ll keep these explanations brief.
Valid Copyright Ownership
You need to prove you’re the rightful owner. A valid registration with the Copyright Office helps a lot.
Lack of Independent Authorship
You have to prove that the similarities between the works are more than just coincidence. That in part, the infringer did not come up with his idea independently but rather was influenced by your work.
Substantial Similarity
A work may have both protectable and unprotectable elements. That being said, the infringement needs to infringe upon a copyrightable element in your work, something that is unique or original to your work.
Unauthorized Use
An infringer is only guilty if he or she doesn’t have your permission, a license to use your work, a valid fair use exception, or some other lawful reason to be copying your work.
Commercial Advantage (to prove criminal infringement):
Sometimes an infringement can be treated as a criminal offense. This requires showing the infringer willfully stole for commercial gain.
Trademark Infringement
Trademark infringement occurs when someone uses a mark that is likely to cause confusion with an existing trademark. Unlike copyrights, which focus on copying something original, trademark protection protects brands or logos - anything you might associate with a certain brand. So what you’re proving to the court is not that something original was copied, but that the infringement is going to cause confusion to consumers in the marketplace. This is the key difference between copyrights and trademarks. Copyrights protect original works of art whereas trademarks protect source-identifying logos or brands.
For something to constitute trademark infringement therefore requires a much different analysis. You must prove the infringing mark is confusingly similar to your brand or dilutes your brand. Counterfeit luxury goods are a good example. The point is to protect the integrity of your brand as it relates to the public.
Proving Trademark Infringement
So, it probably goes without saying then, that proving trademark infringement is a different analysis than copyright infringement.
The legal elements needed to prove infringement are as follows:
1. Ownership:
You must prove you have a valid and enforceable trademark. A trademark
application does the trick. Remember, first to file, first to rights.
2. Likelihood of Confusion:
You must show the infringer’s use of a similar mark is likely to cause confusion among consumers. There are various ways to prove this - sometimes a court will simply
survey people to see if there’s confusion.
3. Use in Commerce:
You’ll hear the term “use in commerce” a lot in trademark law. It’s because
trademarks protect business brands. You must show the infringer’s use in commerce
will have a harmful financial impact on your business and brand - either in real money or reputation.
If you show likely evidence of all these elements, a court may even award an injunction in your favor which is a court order that requires the infringer to immediately stop using the mark.
Comparing Copyright & Trademark Infringement
Other than proving ownership in the work, the elements for proving copyright and trademark infringement are much different. Remember copyright protects original creative works while trademarks protects marks used to identify goods.
For quick review, here are the elements required for each:
Proving Copyright Infringement
Valid Copyright Ownership
Lack of Independent Authorship
Substantial Similarity
Unauthorized Use
Commercial Advantage (for criminal infringement cases)
For Trademark Infringement
Valid Trademark Registration/Ownership (Use in Commerce)
Likelihood of Confusion
Likelihood of Dilution
It’s important that you recognize that copyright and trademarks protect different intellectual property. Copyright protects original expression. Trademarks protect brands.
Either way, depending on the circumstance, engaging in copyright or trademark infringement can have serious consequences. Courts are allowed to award up to $150,000 in statutory damages for willful infringement.
In general, courts will award damages in infringement actions in a number of ways. Firstly, it will likely require the infringer to cease violating the copyright or trademark or suffer further penalties or arrest. Usually this is done through an injunction which is a court order that legally requires the infringer to stop. In other instances, upon a proving of financial loss, the court will award the equivalent in lost monies. Before taking the issue to court, you can consider sending a cease and desist letter and see if you can resolve the issue or move it into settlement.
Conclusion:
People talk about infringement all the time simply because it’s part of the yin and yang of copyright law. In a dollar-driven world, unscrupulous people will always look to take advantage of others’ property. And for a lot of people, intellectual property theft seems benign compared to the theft of actual physical property. But that’s dangerous thinking! Your IP matters just as much as your physical property and perhaps even more because, in the case of trademarks for instance, that theft could damage your reputation in the minds of your consumers.
Comments