Businesses create and use photographs, website content, software, videos, graphics, and other original materials to attract customers and operate their businesses. Copyright infringement generally occurs when someone violates a copyright owner’s exclusive rights without permission or another legal basis for the use.
The consequences can extend beyond the value of a single image or document. Unauthorized copying may undermine licensing revenue, allow a competitor to benefit from another company’s creative investment, or interfere with the market for a product. A business accused of infringement may face demands to remove content, stop distributing a product, pay damages, or defend a lawsuit.
For example, a retailer may copy a photographer’s original product photographs from another website and use them in its own advertising without obtaining permission. Finding the photographs online, crediting the photographer, or having a marketing contractor upload them does not, by itself, establish that the retailer’s use was authorized. Ownership, licensing, the nature of the use, and potential defenses must still be examined.
What Does Copyright Protect?
Copyright protects original works of authorship fixed in a sufficiently permanent form, such as a written document, digital file, photograph, recording, or software code. In a business setting, protected works may include:
- Written materials: original articles, website copy, training materials, and reports.
- Visual works: photographs, illustrations, graphics, and qualifying designs.
- Audiovisual and musical works: videos, presentations, music, and sound recordings, subject to the rights applicable to each type of work.
- Software: protectable original expression in computer code, rather than the underlying function or method itself.
- Architectural works: qualifying building designs, subject to specialized rules.
Copyright protects expression, not an underlying idea, procedure, system, method of operation, or discovery. A business cannot prevent competitors from using an idea merely because it described that idea in a copyrighted document. Nor does protection for a report give its author exclusive ownership of the facts discussed in it. See 17 U.S.C. § 102.
Who Owns the Copyright?
Copyright generally belongs initially to the author, but employment relationships, qualifying works made for hire, assignments, and exclusive licenses can change who owns particular rights.
For a qualifying work made for hire, the employer or other qualifying commissioning party is treated as the author and ordinarily owns the copyright, unless the parties have expressly agreed otherwise in a signed writing. Not every commissioned work qualifies. Paying an independent photographer, designer, or software developer does not automatically resolve ownership; the relationship, the type of work, and the agreements require review.
A business may have permission to use a work without owning its copyright. A license may cover only a particular website, advertising campaign, geographic area, period, or method of distribution. Ownership of a physical copy or possession of a digital file is likewise different from ownership of the rights in the work. See 17 U.S.C. § 201.
What Must Be Proven?
1. Ownership of a Valid Copyright or the Relevant Exclusive Right
The claimant must identify the protected work and establish the right to enforce the copyright being asserted. Relevant questions include who created the work, whether it contains protectable original expression, and whether ownership or an exclusive right was transferred.
Registration records, development files, employment records, and agreements may be important. A registration does not make every element of a work protectable or eliminate disputes over ownership.
2. Conduct That Violated a Protected Right
Depending on the type of work, copyright includes rights to reproduce it, prepare adaptations, distribute copies, publicly perform it, or publicly display it. Sound recordings also have a specified digital public-performance right. These rights are subject to statutory limitations and exceptions. See 17 U.S.C. § 106.
In a copying dispute, the claimant must establish copying of protected expression, not merely a shared idea, common facts, or similar functionality. Where copying is disputed, access to the original and similarities between the works may be relevant, but access alone does not establish infringement.
Independent creation is different from copying. Two creators can produce similar works without infringement if one did not copy the other. Conversely, copying need not reproduce every word, image, or line of code to raise an infringement issue. The nature and significance of the protected material taken matter.
3. The Absence of Permission or an Applicable Defense
A valid license may authorize the challenged conduct. The analysis turns on what permission was given and whether the use remained within its scope. A stock-image subscription, for example, should not be assumed to authorize every advertising use or allow unrestricted redistribution.
Not every failure to comply with a licensing agreement necessarily creates a copyright claim. Depending on the provision and governing law, a dispute may involve infringement, breach of contract, or both. Fair use and other statutory limitations must also be considered.
Does the Work Have to Be Registered?
Copyright protection generally arises when a qualifying original work is created and fixed; registration is not what creates the copyright. Registration nevertheless has major consequences for enforcement.
For a United States work, registration generally must be made before a federal infringement suit can be brought, subject to statutory exceptions. A refusal of registration can also permit suit if the statutory procedures are followed. A business should not assume that submitting an application is the same as satisfying the requirement to sue. See 17 U.S.C. § 411.
Registration timing also affects statutory damages and attorney’s fees. Those remedies generally are unavailable for infringement that began before registration, subject to exceptions, including the three-month registration period following first publication for qualifying published works. Late registration does not necessarily eliminate a claim for actual damages or other available relief, but it can materially change the economics of enforcement. See 17 U.S.C. § 412.
What Is Fair Use?
Fair use permits certain uses of copyrighted material without permission. It is a case-specific analysis, not a blanket exception for material used in commentary, education, news reporting, or a business presentation.
Courts consider four statutory factors:
- The purpose and character of the use: including its commercial or nonprofit educational nature and what the use actually does with the original material.
- The nature of the copyrighted work: including the character of the expression involved.
- The amount and significance used: considering both how much was taken and the importance of that portion to the original work.
- The effect on the potential market: including whether the challenged use substitutes for the original or harms a relevant market for it.
The factors must be evaluated together. A commercial use is not automatically disqualified, and a nonprofit use is not automatically protected. There is no universal rule permitting a fixed number of words, seconds of music, or percentage of a work. Changing a work, adding commentary, or using only a small portion does not, by itself, establish fair use. See 17 U.S.C. § 107.
What Other Defenses and Limitations May Apply?
A defendant may dispute ownership, originality, copying, or whether the allegedly copied material is protected expression. Other issues may include a license, independent creation, expiration of copyright protection, or a specific statutory exception.
Several common assumptions do not, by themselves, establish a defense:
- “It was available online.” Public access does not necessarily mean permission to reproduce or reuse the work.
- “We credited the creator.” Attribution is not a substitute for permission or another legal basis for the use.
- “We did not charge for it.” A lack of direct revenue does not automatically make the use lawful.
- “We changed it.” Altering or adapting protected expression does not necessarily avoid infringement.
- “We did not know it was protected.” Innocence may affect available monetary relief, but does not automatically defeat an infringement claim.
Unlike trademark infringement, a copyright claim does not ordinarily turn on whether customers confused the businesses or believed they were affiliated. It addresses protected expression and the rights involved in its use.
Damages and Other Civil Remedies
The available relief depends on the work, registration timing, the conduct, and the evidence. Copyright law generally provides a choice between actual damages plus qualifying additional profits and statutory damages—not both measures for the same infringement.
Actual Damages
These compensate for losses caused by infringement. Depending on the evidence, they may include lost sales, lost licensing revenue, or other proven harm to the value of the copyright.
A reasonable licensing value may be relevant, but a claimant’s unsupported asking price does not automatically establish the loss. The amount requires a reliable basis, and a business must distinguish infringement-related harm from losses caused by unrelated factors.
Profits Attributable to Infringement
A claimant may also recover the infringer’s profits attributable to infringement that were not already included in calculating actual damages. This prevents duplicate recovery for the same economic benefit.
The claim does not automatically reach all revenue earned by the defendant’s business. Relevant revenue must be connected to infringement, and deductible expenses and profit attributable to other factors must be addressed. See 17 U.S.C. § 504(b).
Statutory Damages
When available, statutory damages allow recovery within a legally defined range instead of proving actual damages and profits. The ordinary range is $750 to $30,000 per work, subject to the statute’s rules concerning the works and defendants involved—not a separate award for every copy, download, or website visit.
For proven willful infringement, the award may be increased to up to $150,000 per work. For qualifying innocent infringement, it may be reduced to as little as $200 per work. These are potential limits, not automatic awards. The claimant bears the burden of establishing willfulness, and a defendant seeking the innocent-infringement reduction must establish the required grounds.
Registration timing and other statutory restrictions remain important. A business cannot assume that the maximum amount is available simply because it received a demand letter quoting it. See 17 U.S.C. § 504(c) and 17 U.S.C. § 412.
Punitive Damages
Ordinary copyright infringement does not create a separate entitlement to common-law punitive damages under the Copyright Act. The increased statutory-damages range for willful infringement is a distinct statutory mechanism, not an additional punitive award automatically added to actual damages and profits.
Injunctions
An injunction is a court order requiring someone to do—or stop doing—something. Relief may prohibit further copying, distribution, performance, or display, depending on the rights and conduct involved.
Federal law authorizes temporary and final injunctions, but an order is not automatic merely because copying occurred or a lawsuit was filed. The claimant must satisfy the requirements for the requested relief, including the applicable showing concerning harm that money alone would not adequately address. See 17 U.S.C. § 502.
Attorney’s Fees and Court Costs
A court may award reasonable attorney’s fees to the prevailing party in its discretion, subject to statutory limitations. A successful defendant may also seek fees where the applicable requirements are met. Winning does not automatically entitle either side to reimbursement.
For a copyright owner, the registration restrictions discussed above can bar fee recovery. Court costs are separate from attorney’s fees and do not necessarily include every expense incurred in the dispute. See 17 U.S.C. § 505 and 17 U.S.C. § 412.
What Evidence Matters?
Important evidence may include original files, drafts, source code histories, creation dates, registration records, employment and contractor agreements, assignments, and licenses. These materials can help establish authorship, ownership, the scope of permission, and independent development.
Dated screenshots, advertisements, copies of disputed products, distribution records, and communications may show what was used, when, and by whom. Licensing records and financial information may be necessary to support a damages or profits claim.
Both sides should preserve relevant electronic evidence. Removing disputed content from public view may limit continued exposure, but should be coordinated with preserving copies, metadata, and other relevant records rather than destroying evidence.
What If a Business Receives an Infringement Demand?
A demand letter is an allegation, not a court ruling. Before agreeing to pay or admitting liability, the recipient should evaluate the claimant’s ownership, the particular work and use at issue, registration timing, any license, and potential defenses.
The requested amount should also be compared with the remedies legally available. A demand based on maximum statutory damages may overlook registration restrictions, disputed willfulness, or how the statute counts works.
A dispute may be resolved through removal, a license, payment for a supported claim, or another negotiated arrangement. Removing material does not automatically resolve liability for past use. A platform’s decision to remove content likewise is not, by itself, a final judicial determination of infringement.
How Long Does a Business Have to File Suit?
The Copyright Act generally requires a civil action to be filed within three years after the claim accrues. Determining when a particular claim accrues—and what periods of infringement may support recovery—requires analysis of the claim, the facts, and the law applied by the relevant court. See 17 U.S.C. § 507(b).
A business should not assume that every claim runs from the date of discovery or that continued online use preserves all earlier claims. Prompt evaluation also matters for evidence preservation, registration, and the availability of effective relief.
Talk to a Business Litigation Attorney
If another person or business is using your copyrighted materials without authorization, or you are facing allegations that your website, advertising, software, or other materials infringe someone else’s rights, contact Waxman Litigation to discuss your options. Early evaluation can help clarify ownership and licensing, preserve evidence, assess defenses, and identify remedies supported by the facts.
This page provides general information only and is not legal advice. Reading it does not create an attorney-client relationship. The applicable requirements, available remedies, and filing deadlines depend on the work, the facts, and governing law.