You may have done just that.
And legally speaking, there’s no such a thing as unintentional or accidental copyright infringement.
Even the simple use of a picture that a member of your staff downloaded from the Internet—perhaps even from a “free site”—can create a liability issue for a startup using the copyrighted work without permission.
In addition, if you hire an independent contractor like a web designer, you’re also liable for the use of pictures posted to your website by that company… even if you didn’t know they were copyrighted photos. A startup with a lack of intent or a lack of knowledge that displays or uses copyrighted work without permission on their website may face legal problems.
Strict Liability Tort
Copyright infringement can happen willfully or by accident. Either way, federal copyright law
prohibits both. Courts have held that there’s no need to prove intent… copyright infringement is
a strict liability tort, meaning that proving the infringer’s intent isn’t necessary. Intent becomes
important only when proving willful infringement. A plaintiff claiming copyright infringement
must prove that:
- the plaintiff is the owner of a valid copyright; and
- the defendant copied original expression from the copyrighted work.
That’s all it takes to win a copyright lawsuit.
Avoiding Copyright Infringement
One exception to this strict liability that permits a startup to use copyrighted work is the doctrine of “fair use.”
Fair use is aimed at promoting freedom of expression by allowing the unlicensed use of copyright-protected works in some circumstances.
Federal copyright law gives the criteria for determining whether something is a fair use and identifies certain types of uses—like criticism, comment, news reporting, teaching, scholarship, and research—as some of the ways that a use may qualify as “fair use.” Section 107 of the Copyright Act sets out four factors in evaluating a question of fair use:
- The purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes:
- The nature of the copyrighted work:
- The amount and substantiality of the portion used in relation to the copyrighted work; and
- The effect of the use upon the potential market for or value of the copyrighted work.
Note that even a valid argument for fair use could be a costly endeavor. Even if you’ve unintentionally used copyrighted material in your startup or have a claim for fair use, it’s still better to do things right from the beginning and work with an experienced copyright and intellectual property attorney.
Attorney Michael Ahmadshahi, PhD, focuses on patents, intellectual property, copyright, and trade secrets in Irvine, California. The Michael Ahmadshahi, PhD, Law Offices are also located in Beverly Hills and Sherman Oaks. Call us toll free at (800) 747-6081 or direct at (949) 260-4997 or email firstname.lastname@example.org and let us help you with your intellectual property questions and the IP strategy for your startup.