A few thoughts on copyright infringement

The world is getting smaller and sometimes our thinking has shrunk right alongside it.  It is a strange paradigm.  Take for example the physical world – travel has never been faster, safer, or less expensive and yet parts of society seem more isolated than ever.  On one hand access expands and on the other understanding contracts.  Take art for example.  Technology has democratized the world of art – putting at people’s fingertips what used to be reserved for the salon.  But it seems that expansion of access has in some very real ways devalued the medium – often meaning that fundamental notions of what it means to own or create have gone right out the door – at least when we are thinking about art residing in the ether (stuff on the cloud – and if you are not sure what ‘the cloud’ is, just think ‘someone else’s computer’).

Let me explain.  As I write this, I’m sitting in a little coffee shop in Catonsville, Maryland.  There is a neat painting of apples on the wall behind me.  In the past, and in this ‘physical’ world, notions of ownership are pretty clear.  I know that someone owns that painting, maybe the coffee shop or, more likely, the artist who might be showing it here in hopes of a sale.  More importantly, I understand that I do not own the painting simply because it is on the wall behind me.  How do I know this?  Because I didn’t paint it, I didn’t buy it, and it is not my wall.  As I pack up my laptop and walk out, I imagine there would be quite a scene if I also yanked the painting off the wall and tucked it under my arm – walking out with the painting would not magically make it ‘mine.’

In our shrunken, data filled, cloud based, digital world though, people act as if this notion of ownership has changed.  Sort of like in Lord of the Flies, people act as if going into the digital world is akin to being marooned on a tropical island where different rules apply or have to be created.  Here’s an example.  While most people know that taking a painting off the wall is wrong, and they wouldn’t dream of reaching over and grabbing that photo of the sunset at the beach in Jim’s cubicle next door, they usually don’t even pause before clicking, copying, and pasting if they are surfing around and see that same painting or photo online.  Some people might take Jim’s physical photo and put it on their cubicle wall or above their mantle, others might take the physical painting and put it on the lobby wall at their own business.  That is wrong, and we call those people thieves.  But when we reduce those physical images to bytes, even people who recoil at the idea of theft will often feel it is perfectly fine to ‘use’ something they neither created nor purchased.

For artists, photographers, and creators, though; there is help.  There’s an answer to the question of how we make sense of ownership in this new digital world.  That answer is the exact same notion of ownership that applies everywhere outside the digital world.  For would-be byte thieves, you might be on your computer and information might be stored digitally, but you are in the United States (if you are reading this in the U.S.!) and the same things that prevent you from taking items from stores, off walls, or off desks – the fact that you did not create the item, did not purchase the item or rights to use it, and haven’t been given express permission to use the item for free – should be the same things that keep you from copying information online for your own use (not to mention the fact you’d have to explain why Jim’s kids were on your beach trip). 

Fundamentally people understand the reasons why traditional notions of ownership apply in the digital world.  As a photographer, the fact my image is digital rather than ink on paper does not change the fact that it is my creative work, not yours.  The fact that I decide to exhibit that image to friends on social media is conceptually no different than me bringing an ink on paper image to a gathering of friends to show it off.  The fact that in first case you are alone at your computer and can take it without being questioned and in the second case would have to physically take it out of my hands does not change the underlying fact that it is not yours.  Perhaps my image online has a watermark or information identifying me as the owner or creator.  Perhaps it does not.  That does not matter – it is not Monet’s signature on the painting that clues you in to the fact that you did not paint it or purchase it.  Sadly, the fact people fundamentally understand why they should not steal digital work is not enough to keep them from doing so.  That is why artists and creators of digital content have Copyright protections.  Many though think that digital theft is simply the way of the world and don’t realize that there are real penalties for those clicking and copying.  They simply need to be informed that there are options.  Intellectual property attorneys, like those at our firm (shameless plug) can help with that.

As a 30,000-foot summary, the 1976 Copyright Act (the “Act”) protects artists and photographers from having others use their work without their license or permission.  The Act has several parts that act as severe penalties for those violating an artist’s copyright in their work – namely that an artist successfully showing that someone has used their work without permission can be awarded their attorney’s fees in prosecuting a lawsuit against a digital infringer (one who uses someone else’s work without license or permission is committing copyright ‘infringement’) and there are statutory penalties that can apply in appropriate cases.  Statutory penalties protect artists in cases where actual damage amounts from infringement are difficult to quantify – providing a set range of money damages that infringement can fall within (from $200 for the rare case of completely innocent infringement, where someone had no idea they were using the artist’s work, to $750 – $30,000 in damages in cases where the infringement was not innocent but was not willful, and up to $150,000 in cases where the infringement was willful).  In addition, in many cases someone infringing on an artist’s copyright will take steps to save the image to their own system without some of the original ‘metadata’ that shows information about the artist – there are separate penalties of up to $25,000 under the Act for removal of such information.  See Island Software & Computer Serv., Inc. v. Microsoft Corp., 413 F.3d 257, 263 (2d Cir. 2005); Lauratex Textile Corp. v. Allton Knitting Milles Inc., 519 F.Supp. 730, 733 (S.D.N.Y. 1981); Peer Intl. Corp. v. Pausa Records, Inc., 909 F.2d 1332, 1335-1336 (9^th Cir. 1990) for discussions of what constitutes ‘willful’ infringement.

For artists realizing there are protections for them, there is a catch.  In order to make use of the protections afforded by the Act, you have to take the step of actually registering your copyrights in your created work.  That is a simple process that attorneys at Dunlap Bennett & Ludwig can assist with.  Once registered, protecting your rights under the Act and consulting with you as to the best way to deal with potential infringers is one of our firm’s principle practice areas (from structuring IP ownership – not only copyrights, but trademarks and patents – to potential litigation if necessary).

For those who find themselves accused of infringement or who would like advice on how to minimize the risk that they or their business would be in jeopardy of infringement, we are glad to assist. 

For those of you getting ready to pull that painting off the wall, don’t.

Ben

bbarlow@dbllawyers.com