Under federal copyright law, anyone who willfully infringes a copyright in certain ways will be subject to criminal penalties, including prison for several years. That’s a remedy to be taken seriously. It’s probably not likely that the average consumer or employee will be criminally prosecuted, but there are criminal remedies available. Since copyright infringement may be a crime, if I read a Dilbert® cartoon, really like it, and forward it by email to a friend, is there a chance I will be sent to prison?
What works are copyrighted? The definition is very broad and essentially covers anything that is original and fixed in a tangible medium of expression, which includes digital storage. This includes blog posts, newspaper and magazine articles, images on websites, presentations, memoranda, and educational literature. The list is very long. Usually the issue with copyright rests not with whether the work was original and therefore copyrighted, but instead whether the person in question of copyright infringement had the right to do what he or she did with the work.
Copyright infringement occurs when a copyrighted work is used, copied, distributed, revised, or publicly displayed without the consent of the author or creator of the work. Using the Dilbert® cartoon as an example, infringement includes making a photocopy of the cartoon, scanning the cartoon and saving it in a Dropbox® folder, sending the cartoon to a friend by email, or using the cartoon in a PowerPoint presentation to a chamber of commerce. Infringement also occurs when a presentation is copied and distributed internally in a business or an email is sent to a group in an organization to promote a strategic goal, but includes an image created by someone else.
The act of making a copy or sending a work by email is not really dependent on the audience. An internal email or interoffice copy is just as infringing as blasting a post with infringing material to thousands of subscribers to a news service. It should be noted, however, that the original comic may be delivered to someone in its original form, so long as a copy is not made and delivered.
There are a few considerations for assessing the risk of potential infringement. Sending an internal email of a Dilbert® cartoon is not likely to generate actual damages. If Scott Adams, as the creator, gets really upset, it’s possible he could seek an injunction against any future infringement, but it’s not likely there would be any actual damages. However, Scott would have a right to claim statutory damages. These are damages awarded for situations like this where the actual damages are nominal at best, but the law wants to provide a remedy to the copyright owner. Statutory damage awards may be as high as $30,000 for infringement of the work, but if the infringement is found to be willful, the award may be as high as $150,000. Statutory damages are intended to make us think twice before engaging in any potentially infringing activity.
Infringement does not occur if the person engaging in the copying or other activity has consent, permission, or an express license to copy, distribute, or otherwise use the work in a way that might otherwise be infringing. Usually professionally published works, and often websites, provide an easy way to request permission to use a work. This is not to suggest that the author may not want a royalty, or impose limitations on the work, but this is certainly the safest way to use a copyrighted work. The reason there is so much copying and distribution in the social media world is that the terms and conditions of the social media providers require licenses and rights to allow the distribution, copying, and other use of content posted on the social media sites.
Finally, there is fair use. Unfortunately, fair use does not mean copying anytime there is not a profit involved, or if there is less than 20 percent of a music composition involved. There are no bright line tests. In fact, the test is difficult to implement, and unless a work is being used by a nonprofit institution for teaching or critical analysis, or something very similar, be wary of claiming fair use. Typically fair use is raised after the infringement claim is made, not when someone is considering using a work of someone. If someone is prepared to take the time to do the analysis and take the risk of coming under the fair use umbrella, the person or business would be well advised to use the time and effort getting consent or a license from the author. In most situations, invoking fair use prospectively is risky.
Making decisions on the use of an original work created by another can be tricky. It’s easy to conclude that sending funny stories, posting newspaper clips, and forwarding cool content from a website does not constitute infringement, because we seldom, if ever, hear of anyone being sued for infringement. But this is one case where having the masses engage in the behavior does not provide legal comfort. It may mean that the risk of being sued is not real high, but it does not make the activity legal. It simply means the law is not always being enforced.
About the author
John H. Rees is a Shareholder and Intellectual Property Section Chair at Callister Nebeker & McCullough in Salt Lake City, Utah. John is a corporate and intellectual property lawyer working with clients to develop strategies and solutions for complex legal challenges and managing legal risk in a dynamic business, legal, and regulatory environment. He focuses more particularly on matters involving branding and trademarks, domain name management, disputes and strategies, technology use and development, software and database licensing, including SaaS, copyrights, and doing business in a rapidly changing business and social online environment. John can be contacted by email at firstname.lastname@example.org or by phone at 801.530.7388.