They say imitation is the sincerest form of flattery—but, for the people who make a living through artistic expression, it can actually be quite detrimental.

Whether you’re creating literature, music, theatrics, choreography, or architecture, producing a piece of creative work isn’t always easy. In fact, people often pour their hearts and souls into this kind of work so, naturally, they expect to hold exclusive rights to the end product. That would only be fair, right?

Unfortunately, in a time when information is everywhere and self-publication is common, copyright infringement is a regular occurrence.

If you’re a freelancer whose livelihood depends on creating original work, read on to discover how to avoid infringing on someone else’s copyrighted material and what to do when someone infringes on yours.

Related Documents: Independent Contractor Agreement, Cease & Desist Letter

What is Copyright Infringement?

Copyright infringement occurs when someone reproduces, distributes, displays, or performs a piece of protected work without the creator’s permission. In addition, people who create derivative work (work that is copied or adapted from another piece of work) without proper authorization are also infringing copyright.

Similar to patents and trademarks, copyrights help to protect a person’s intellectual property (property that results from original, creative thought). In general, copyright protection is awarded in the United States the moment a piece of work is created, regardless of whether or not the piece is officially published, and lasts for the lifetime of the author plus 70 years after their death.

When someone finds out their work was plagiarized, copyright laws allow them to enforce their rights by seeking damages (usually monetary compensation) and sometimes a court-ordered restriction on further copying or distribution.

Since it can be difficult to prove the extent of damages in a copyright case, federal courts often award statutory damages—a monetary amount that is specified within copyright law—rather than being individually calculated per case. If a piece of copied work is already successful, then retrospective licensing or assignment of royalties makes sense.

It’s important to note that US copyright law is a federal concern administered by the US District Courts. The types of work typically covered by copyright law include:

  • Literature
  • Music
  • Drama
  • Choreography
  • Graphic designs
  • Sculptures
  • Paintings
  • Movies
  • Sound recordings
  • Architecture

Unfortunately, there is no such thing as a global copyright, which means there’s potential for work to be plagiarized by a person in another country where copyright regulations may be different. However, the United States is party to international treaties which copyright owners can look to for legal protection outside their own country.

Through these treaties, several countries have established facilities for copyright owners to register their works. By registering copyrighted work, you can clearly establish and enforce your ownership rights. So, although it may be difficult to stop someone from plagiarizing your work initially, options are available for enforcing your ownership rights.

Read More: Freelancers: How to Protect Your Intellectual Property

How to Avoid Copyright Infringement

If you’re creating a piece of work that is 100% original, you should typically have no problems claiming copyright. However, if you’re basing your work off the work of another, you need to be extra careful not to infringe on the original author’s copyright.

Of course, artists use reference material all the time. While this is acceptable in cases where the reference material is generic and not copyrighted, you may find yourself in hot water if you’re creating a derivative piece of work without giving proper credit or compensation.

To be clear, you can use copyrighted material without a licence if your work falls under the definition of “fair use”. In American copyright law, whether or not you can successfully use the defense of fair use depends on the following factors:

  • The purpose and character of the use: If the piece of work is for non-profit or non-commercial educational uses, it will generally be considered fair. The same goes if you’ve added something new to transform the original piece of work into something with a different purpose or characterization.
  • The nature of the copyrighted work:Because copyrights exist to encourage and protect creative expression, someone who uses a piece of factual or scientific work as a reference is more likely to be able to claim fair use than someone who uses a creative or imaginative piece of work.
  • The quantity and quality of copyrighted material used: This factor really depends on the context of the case. For instance, in some cases you may be able to get away with copying an entire piece of work. In other cases, you may not be able to copy even a small portion of it. Everything depends on the source material, how much was taken from it, and how significant the copied portion is in relation to its source as a whole.
  • The effect on potential market value: A court may determine fair use if the unlicensed use of copyrighted material has little or no impact on the potential market for the original material.

It’s important to note that fair use claims are examined on a case-by-case basis, and it’s up to federal courts to determine whether or not someone’s copyright is being unfairly infringed upon. With that said, court battles can cost exorbitant amounts of time and money, so it’s better to avoid them if you can.

Aside from ensuring your work qualifies as fair use, it’s always best to ask for permission from the copyright owner before you make plans to use their work.

What to Do When Someone Infringes Your Copyrighted Material

Freelancers should know whether their work falls under copyright protection or not. Copyright protection doesn’t apply to intangible thoughts, such as ideas, methods of operation, concepts, etc.

If your work is protected by copyright, there are certain steps you can take to deter copyright infringement.

First, you’ll want to establish your ownership rights as soon as possible. If you’re creating a piece of work for hire, be sure to specify who has ownership rights to intellectual property in the Independent Contractor Agreement between you and your client. You can decide to keep exclusive rights yourself, but give your clients a license to use your material. If you don’t specify anything, U.S. copyright law generally grants exclusive rights to the client for whom the work was created.

You can also register your copyright with the US Copyright Office. This is beneficial because it provides strong evidence of your valid copyright ownership, and also because registration is necessary before you can sue someone for copyright infringement. In addition, registering your work makes it easier for people to find you when they want a license to use your copyrighted material.

However, not everyone will ask permission to use your work.

The first step in the event of someone infringing your copyright is to notify the infringer of their violation. In some cases, the infringer might not realize how they inappropriately used your material so you want to give them the chance to give you credit, compensate you appropriately, or take down the copied material. If the infringer fails to respond or satisfy your request, you can send a Cease and Desist Letter that threatens legal action.    

It’s important to take action against copyright infringement as soon as it comes to your attention because there is a legal time limit (i.e. the statute of limitations) in which you can file a lawsuit. In the United States and Canada, you have three years from the date of the infringement to bring a claim to court.

Read More: How to Write a Cease and Desist Letter

Protecting Your Intellectual Property

Legal battles regarding copyright infringement can be lengthy and expensive; if you prefer to avoid them, it’s best to take preventative measures to protect your intellectual property. Be sure to specify your ownership rights in service contracts with clients, register your copyrighted work, and always ask for permission before using someone else’s copyrighted material.

Posted by Jasmine Roy

Jasmine has been writing for LawDepot since 2018. She is a writer with a passion for politics, law, and sociology. She's particularly interested in writing about real estate and family law.