What is copyright infringement, and how do I avoid it?

 

What is copyright?

At its most basic, copyright is the right to prevent people from copying your work. Under the Copyright, Designs and Patents Act 1988 (“CDPA”), copyright will exist in certain categories of original works which are:

• Original literary, dramatic, musical or artistic works;
• Sound recordings, films or broadcasts; and
• Typographical arrangements.

Although the law goes a little further. To secure copyright protection, the work (for example, a painting) needs to be an “original intellectual creation”, and expressed in an identifiable manner.

For copyright, something is an “original intellectual creation” where it was created by the author using free and creative choices. It’s expressed in an identifiable manner usually when it is put down on paper or recorded in some other way. This latter requirement, for it to be expressed in an identifiable manner, unfortunately, means that ideas and concepts are not able to be protected by copyright.

Overall, copyright is a fantastic intellectual property right. It can protect a wide range of original works, including sound recordings, films, photographs and literary works, for a lengthy period of time. And, moreover, copyright comes into existence once an author has put pen to paper (or the like) in a durable format – for example, a sound file, a movie, a picture, or a book. Even better, copyright is entirely free and automatically assigned to the creator, owing to there being no registration process in the UK or EU.

But what happens when someone else creates a piece of work that’s the same as, or very similar to, another piece of work?

This situation is not uncommon, and it can arise accidentally or on purpose. Either way, the owner of the original work may have a legitimate claim for copyright infringement. But what is copyright infringement, and how can you avoid it?

Let’s take a deeper look.

What is copyright infringement?

When a work is protected by copyright, the owner of the copyright can prevent other people or entities from copying or using the work without their permission. If another party does copy or use the work without permission, then that’s what we call copyright infringement.

As such, copyright infringement can be defined as the act of violating the exclusive list of rights afforded to a copyright owner without their permission.

Copyright infringement can take various forms. Section 16 of the CDPA sets out the acts restricted by copyright in a work, or, more plainly, the acts that would amount to an infringement of copyright. Before I get onto those restricted acts, its useful to mention two points:

1. The first is that copyright can be infringed by copying all of a copyright work (e.g. copying and pasting all of our BRIFFA logo), or by copying a substantial part of a copyright work (e.g. copying only the “B” from our BRIFFA logo).
2. The second is that a person can be liable for copyright infringement where they authorise another to infringe copyright. For example, if I asked Joe (my graphic designer friend from down the road) to copy the BRIFFA logo and put it on a T-shirt, then I’d be liable for copyright infringement even though Joe did the actual “copying”.

Now, back to the restricted acts. Acts which would amount to infringement include:

• Copying the work
• Issuing copies of the work to the public
• Renting or lending the work to the public
• Performing the work in public (e.g. a show or play)
• Communicating the work to the public
• Making an adaptation of the work

If a person commits any of these acts without the copyright owner’s permission, it is known as an act of “primary infringement”. Primary infringement generally requires:

1. Proof of copying from the copyrighted work, i.e. you must have seen it to have been able to copy it (although this could be performed subconsciously)
2. Similarity/identity between the two works

Generally, when we make a claim that someone has infringed copyright, it will begin by explaining that the infringer, let’s call them Person A, must have seen the copyright work. Using our BRIFFA logo as an example again, Person A has the ability to see and copy our logo from our website, which gets us the first key ingredient. We would then make the case that because person A’s logo is an identical copy of our BRIFFA logo, they must have copied our logo to create it. 

Due to the fact that our argument includes both the requirements for primary infringement, then we should then have Person A banged to rights.

A good recent example of copyright infringement in action is Lynn Goldsmith’s recent US claim against Andy Warhol’s estate. In that claim, Ms Goldsmith alleged that Mr Warhol had created silkscreen prints based on a picture Ms Goldsmith had taken of Prince. At a very high level, the claim was successful as Ms Goldsmith owned the copyright work (the photograph of Prince) and Mr Warhol had used this work to create his silkscreen prints. The case is a good illustration of how the two key ingredients are having the ability to see and copy and then actually copying the copyright work. 

Furthermore, Sections 22 – 26 of the CDPA go on to list the various acts of “secondary infringement”. These include:

• Importing an infringing copy
• Dealing with infringing copies
• Making means for making infringing copies

These acts are generally aimed at those further down the supply chain. The main difference between secondary and primary infringement is that the infringers state of mind is irrelevant for primary infringement (i.e. it’s not a defence to say you didn’t know it was an infringement), whereas it is relevant for secondary infringement (as it can sometimes be a defence to show there was no knowledge of the infringement).

What are the penalties for copyright infringement in the UK?

Copyright infringement is usually a civil court claim. This means that the court can:

• Order an injunction, to prevent further infringement
• Make a declaration that someone’s copyright has been infringed and award damages or an account of profits generated from the infringement. A damages payment is usually based on the amount the copyright owner would have licenced the work for (think, for example, the amount that photos can be licenced for on image-sharing websites). Whereas, an account of profits is the amount of money the infringer has made from sales of the infringing work.
• Award additional damages for “flagrancy”. This is where the infringer was aware that they shouldn’t be copying the work but did so anyway.

However, copyright infringement can also be a criminal matter, which can see jail time.

As such, with heavy penalties at stake, it’s crucial to avoid infringing copyright. But how can you do that?

How to avoid copyright infringement

Sometimes, people will say that if they make seven (or another arbitrary number) of changes to a piece of work, then there will be no infringement. Unfortunately, this is not correct and you could still be infringing copyright even if you made a million changes.

So, to avoid infringement, obviously, the best approach is to not copy another person’s work. It can help to learn what is covered by copyright. Copyright protects the whole range of literary and artistic works and so, in the event you see something you like or want to use, it most likely will be protected by law. You should also keep in mind that state of mind or no knowledge of infringement is not a defence in all cases and so while ignorance can be bliss, it isn’t in the world of copyright.

If you are very keen to use someone else’s work, then there are two things you can do:

• The first would be to get the copyright owner’s permission to use the work, known as a copyright licence. A licence gives you permission to use the work, usually in exchange for a fee, and it stops the owner from claiming copyright infringement.
• The second would be to ensure that your work does not look anything like the copyright work, even if you use a copyright work as inspiration – there’s nothing wrong with being inspired by someone else’s work, after all, most creative ideas are a variation or evolution of something that’s come before. 

When can copyright infringement be permitted?

There is a provision in the Copyright, Designs and Patents Act 1988 that permits the use of a copyright work where it is considered to be “fair dealing”. Under fair dealing it can be possible to use a copyright work for the purpose of research and private study, criticism and review, quotation, news reporting and caricature, parody or pastiche.

This sounds great, right?

Well, not quite. If you use a work protected by copyright under fair dealing (e.g. for criticism and review), then in addition to using it for that activity, you will also need to use it in a “fair” way. Unfortunately, the Copyright, Designs and Patents Act 1988 doesn’t tell us what “fair” means, but generally the question is whether a fair-minded and honest person would have dealt with the copyright work in the manner in which the defendant did.

This can often leave a lot up to interpretation, and arguing that the use of a copyright work falls within a fair dealing exception can become a time-consuming exercise. So, we highly recommend getting a copyright licence instead, where possible.

Dive deeper into this topic: When can copyright infringement be permitted?

How to respond to a copyright infringement notice?

If the owner of a work protected by copyright believes you’re infringing their rights. You’ll likely receive a copyright infringement notice from them or their legal team.

Before responding to a copyright infringement notice, there are a few questions to ask yourself first:

• Does the person who sent the copyright infringement notice actually own the copyright?
• How do we know that the person owns the copyright?
• Does the claimed infringing work look anything like the copyright work?
• Did the alleged infringer actually see and copy the copyright work?
• Would any exceptions to copyright infringement apply?

Then, based on the answers to the questions above, you’ll be able to work out if the person sending the notice has a case. If they do have a case, then it may be appropriate to embark on a damage limitation exercise (e.g. ceasing use of the copyright work), or if there is no case, you can respond appropriately. Either way, you should seek specialist legal support and advice – a lawyer can help determine if there is a case, and how best to respond.

Dive deeper into this topic:

• How To Respond To A Copyright Infringement Notice
• How Do You Defend A Claim For Copyright Infringement?

How to identify and report copyright infringement

Copyright infringement can be identified relatively easily with a few steps:

1. Step one: Identify who owns the copyright (is it you, your employer, or the company you’re freelancing for?). If you own the copyright, move on to step two. If you do not, then steps should be taken to transfer the copyright to you.
2. Step two: Did the infringer have the ability to see and copy the copyright work? For example, was it publicly accessible on a website, social media or somewhere else? If it’s possible the infringer saw your work, move on to step three.
3. Step three: Is the infringement identical or incorporates a substantial part of the copyright work? If you made it here, and the answer is yes, there’s a good chance you have identified a copyright infringement and so move on to step four.
4. Step four: Next you will need to put the infringer on notice of your copyright ownership, and how you suspect it is being infringed. This is usually done with a cease and desist letter.

FAQs

Is fan art copyright infringement?

Yes, if you see a picture of a character and use that picture to create your own work, it’s likely you are infringing copyright.

Is sampling copyright infringement?

Yes, the reproduction of even just a few seconds of a sound recording for a sample will amount to copyright infringement.

Do memes infringe copyright?

You may be at risk of an infringement claim if you share a meme without the owner’s permission, or if you are using existing copyright-protected material to create new memes. This is because the image will be protected by copyright, and adapting or copying the images can only be done with the copyright owner’s express permission. Learn more about memes and copyright.

I’m a creator and want to use someone else’s work without being subject to a copyright infringement claim, what should I do?

If you see a piece of work that you like and you wish to use it for your own business purposes then you should ensure that you have the appropriate permission from the copyright owner.

The works can be licenced to you with an agreement for you to use the works on certain terms, e.g. a copyright owner may give you permission to use the works for non-commercial purposes only. Or works can be assigned to you – this is a transfer of ownership of the copyright from the copyright owner to yourself, allowing you much more flexibility with how you can use the works.

Legally, you’ll need a watertight licence agreement or copyright assignment contract to suit your needs.

Someone has copied my work, what should I do?

Although they say copying is the sincerest form of flattery, you’ll want to protect your creative work. We recommend following the steps outlined in the section above (“How to identify and report copyright infringement”) to determine whether an infringement has occurred. If so, you should speak with a solicitor and consider sending the infringing party a cease and desist letter to assert your rights.

Need help with copyright infringement?

Copyright is great. It arises automatically and gives the owner the right to prevent it from being copied. Although, it can quickly become a tricky job to work out who actually owns the copyright and if it’s been infringed.

If you’re in doubt and would like some help, please contact one of our expert lawyers. All the team at Briffa are well versed in copyright, from licencing to infringements, so we are well positioned to assist. Get in touch today using the contact form below to organise a free consultation.