Your Company has Received a Copyright Infringement Notice – Now What?

Posted by Daniel H. Park on

A copyright infringement notice may be sent when the owner of a copyright believes you are infringing on his or her copyright work.  If your company receives a notice that you are infringing on a copyright, it is important to take the notice seriously.  

What is a copyright infringement?

An owner of a copyright has the exclusive right to reproduce, create derivative works, distribute copies to the public, and display and perform his or her work.  A copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.  To establish a copyright infringement in court, the owner must show (1) ownership of a valid copyright, and (2) violation of one of his or her exclusive rights.

Why should I take a copyright infringement notice seriously?

Ignoring an infringement notice is not advisable.  Failure to respond to the notice may result in a lawsuit.  Damages for copyright infringement can include:

  • Statutory damages ranging from $750 to $30,000 per copyrighted work infringed upon;
  • Increased statutory damages of up to $150,000 per copyrighted work infringed upon if the infringement is found to be willful;
  • Damages for the loss in value of the copyrighted work and profits of the infringer.

Ten Tips to consider when a copyright infringement notice is received.

Upon receipt of a notice, it is important to make certain considerations before responding.  Here are some tips to consider:

  1. Read the notice carefully. The infringement notice should clearly identify the allegedly infringing work.  It should also contain important details regarding the copyrighted work, including proof of ownership of the work.
  1. Investigate the allegedly infringing work. Was it created internally at the company?  Do you hold a license to use the work?  Determining whether you have any rights to the work is key to defending against an infringement claim. 
  1. Investigate the alleged copyrighted work. The notice should provide proof of ownership of the work.  If the owner claims to have applied for or received registration of the copyright, you can search for the application or registration on the U.S. Copyright website.
  1. Determine if there is an infringement. Do you have permission to use the work?  Is the work the same or substantially similar to the copyrighted work? 
  1. Determine if there are defenses to the claim. Copyright does not protect certain uses of work.  For example, under the fair use doctrine, use of a work for purposes such as criticism, comments, new reporting, teaching, scholarship, or research is not an infringement.  Thus, quoting a few lines from a song in a music review or parodying a famous song in a comedy performance are considered fair use. 
  1. If there is an infringement, investigate how an infringement occurred. Given the potential damages for a willful violation, it is important to consider how the infringement occurred.  Was the use of the copyrighted work inadvertent?  Did an employee knowingly use copyrighted material for the benefit of the company?  Understanding how the infringement occurred is key to determining your potential liability.
  1. Preserve evidence. Necessary steps should be taken to preserve all relevant documents, files, e-mails, social media postings, and anything else related to the allegedly infringing work.  This may include suspending automatic electronic deletion policies and prohibiting employees from destroying related documents. 
  1. Collect relevant documents and information. Part of the investigation should include collecting all written documents relevant to the alleged infringement.  This should go hand-in-hand with the company’s efforts to preserve evidence.  Additionally, gather information related to any profits (if any) arising out of the use of the work.  This will also help determine the scope of potential damages.
  1. Review your CGL and E&O policies. Your commercial general liability and errors and omissions insurance policies may provide coverage for a copyright infringement claim.  Ask your insurance agent or broker to determine if you have coverage.  Remember that an insurance claim must be timely submitted in writing, so follow the terms of the policy to ensure timeliness of a claim.
  1. Prepare a response. A response should clearly set forth the circumstances of your use of and rights (if any) to the work and any defenses you have to the claim.  You would do well to consult your legal counsel to craft the response.

Given the potential monetary exposure a company may face in a copyright lawsuit, it is crucial that a copyright notice be taken seriously with careful consideration as to how to respond.  If you have questions about a copyright notice, please let me know if I can help.