Erin Austin: Hello, ladies.
Welcome to this week's
episode of hourly to exit.
Now we talk a lot about
protecting our expertise
through copyrights and
contracts, owning and
controlling the fruits
of our expertise, aka
intellectual property.
Is the key to creating a
scalable and salable business.
Similarly, it is our
duty to respect the
rights third parties
have in their materials.
The thought leaders that
we follow, the coaches
that we learn from, the
property of our prior
employers and of our clients.
These are all examples of
intellectual property that we
come across and that we may
refer to in our own materials.
We may.
Use in providing services
to our clients, but
whether through negligence
or ignorance, if we use
other parties copyrighted
material without permission,
we may be guilty of
copyright infringement.
At best.
It is embarrassing.
We need to apologize.
We may need to clean up
a mess that we've made.
Maybe we've delivered
something to a client that
we didn't have rights to.
At worst, though, we
can get into a fair
amount of trouble under
intellectual property laws.
So this is the first of
a three part series about
copyright infringement.
In this part one, I'll talk
about what happens when
a copyright is infringed.
In part two, I talk
about how to avoid being
a copyright infringer.
And finally, in part three,
we talk about ways to
prevent your copyrights
from being infringed.
So first, what Constitutes
copyright infringement.
Copyright infringement
occurs when a party violates
any of the copyright
owner's exclusive rights.
As you recall, copyright
provides a bucket exclusive
rights to the copyright So
when you are the creator of
an original work, you have
an exclusive set of Rights
that allows you to control
your creations, how they're
used and the exclusive right
to earn compensation from
them, the exclusive right
to benefit from their use.
So, briefly, those buckets
of rights include the
right of reproduction.
That's the right to make
copies of the protected
work in any form, not just
imprinted copies or books,
but also digital downloads.
Just making a copy and,
pasting it somewhere
else in the internet.
That is exclusive right of
the copyright owner, the
right of adaptation also
called derivative rights.
So that's the right to
modify the work so you can
create a new work from it.
That new work is a derivative
of the original one, and
that is still owned by the
original copyright owner.
And so an example of
that would be turning a
book into a screenplay.
and even turning a screenplay
into a movie is actually
another, derivative, right?
The right of distribution.
So that's the right to
distribute the copies publicly
for sale or for license.
And so that is, actually
separate from the
right of reproduction.
the right of reproduction
applies whether or
not that's for sale.
so the right of
distribution, generally.
It refers to the sale or
licensing of the material, the
right of public performance.
So that would be the right to
publicly perform to, read your
novel out loud to, dance your
dance in public, to perform
the play that you wrote.
so any performance based
works, you have an exclusive
right to public performance.
The right to public display.
This typically refers to
art, the right to publicly
display your art is, that of
the copyright owners, think
about, the artwork you may
have in your home that is
original art and you own that.
Piece of artwork, but you
don't actually have the
right to publicly display it.
the copyright owner has
the right to do that and
similar to derivative rights,
the right of translation.
So to translate your work
into other language, or
to authorize a 3rd party
to do any of the things
that we talked about.
also the exclusive right
of the copyright owner.
So.
when there's a valid copyright
involved and there has not
been authorization from
the copyright owner, an
infringement when, both of
these following are present.
First, the infringer has
actually copied, you have
to actually have copied
the copyright owner's work.
sometimes, someone will
accuse someone of copying
their work, but guess what?
There's no way they could
have had access to it.
it's been under lock
and key in my drawer.
I mean, it's kind of
nutty, but people actually
do say, Oh, my God, this
is exactly what I wrote.
But no one's ever seen their
manuscript it's never been
published Maybe they sent
it to agent at some point,
but that they never did
anything with it because
it, they didn't want it.
And somebody else write
something and it seems
an awful lot like it's
been copied, but did
they actually copy it?
Did they actually have
access to That original
work that they're
claiming was infringed.
So there has to be actual
copying and then they have
to have copied enough of it
to give rise to liability.
So, taking a little
snippet here and there,
Does not generally
give rise to liability.
Now, if it's an haiku,
and you took a line out
of haiku, then, that could
give rise to liability.
But, taking a sentence out
of an entire manuscript
probably would not.
So, as you can tell,
this is not a cut and dry
analysis, the particulars
of the activity Will
determine whether or not
there has been infringement.
So, let's take the
traditional case of,
let's just say there's a
single work and, they did
not copy it literally.
or it's in its entirety.
So, when you have that
circumstance, you're
going to have to have
a fact finder, which.
Is a court of law to
figure out whether or not,
there was a copying that
gives rise to liability.
in that circumstance where
they haven't literally just
lifted the whole thing and
copied it and put their name
on it, which people do, but
generally, subtler than that.
They have been so heavily
influenced by it that It
is considered substantially
similar and that in that case,
generally, we would need a
court of law to determine
that and whether or not
there'd be liability there.
So, what we need to remember
is that the fact that we own.
A copy of that copyrighted
work does not grant to us
any of the exclusive rights
that the copyright owner has.
So, again, they have
the right to reproduce
it and to distribute,
perform it, display it,
adapt it just because I
have a copy of a book.
I don't have any of those
rights of the copyright
owner just because I have.
A piece of artwork.
I do not have any of those
rights of the copyright owner.
So some examples of
copyright infringement
that unfortunately happen
to frequently piracy,
that's downloading
or distributing of.
Copyrighted songs or
movies or TV shows
without authorization.
And that would include, even
if all you're doing is taking
them and uploading them
to YouTube, even if you're
not personally, getting any
money from it, you don't have
the right to, make copies.
And distribute somebody else's
copyrighted works, right?
reproducing artwork.
So making copies of
paintings or photographs or
graphics without permission
Selling them or displaying
them So a lot of times
this happens where people
will find an image on the
internet And they put it
on their website without
permission if you don't have
permission to use What would?
Fall into a category of
copyrighted works, then
you should assume that
somebody owns them and
you need to get permission
for, reprinting of eBooks,
especially because it's so
easy to do, to just download
something and, offer it.
Even if you're offering it
for free, if it's not yours,
that would be an infringement.
sampling, I mean, we've
all heard about, famous,
Litigation regarding someone
sampling someone's music,
and without getting clearance
from virtual creators.
We know that can be a
huge, huge liability,
unauthorized adaptations.
This one happens in
the business world.
know, I do get questions
about, hey, there's this.
Book and I want to create
a workbook based on this
book, or I want to create
a course around this book.
and so those would be
considered unauthorized
adaptations if you don't
have permission from the
copyright owner of that.
Work and then website
content, you again, people
tend to think that things
on the Internet are just
free and they are not.
So, lifting somebody
else's website content.
I think crazy when I hear
that entire websites have just
been lifted and they give it
a new URL and they go to town
with someone's entire website.
and so obviously that would
be a copyright infringement.
So remedies, remedies
that are available against
a copyright infringer.
So the primary remedy
are monetary damages,
money damages.
So the aim of monetary damages
is to Compensate the copyright
owner for the losses that they
incur due to the infringement.
So there's one, the loss
that the copyright owner
has, but also they want
to the profits that the
infringer may have realized.
Like you don't get to get.
Profits from my materials
and so the monetary damages
could be the actual damages
that the copyright holder
suffered as a direct
result of the infringement.
So that might be the lost
sales or lost licensing fees.
let's say you, generally,
I'm sell, a hundred books per
month and somebody else has
stolen it and now suddenly
you're not making any sales,
those would be actual damages
that loss of the sales
that you would typically
have made had they not.
Infringed your copyright.
similarly, the
profits attributable
to the infringement.
So let's say, they stole
your book, but somehow
they were able to sell even
selling it for 50 bucks.
Each.
They're able to sell
it for 100 bucks.
Each.
Well, you get the profits
from their 100 dollar,
per uh, sale profits.
and that's just to make
sure that the infringer
does not benefit financially
from their activities.
Under the U.
S.
laws, there are
statutory damages.
So statutory damages are
preset amounts that are set
forth under the law that the
copyright holder can opt to
receive instead of proving
actual damages or profits.
So let's say you just
have stuff that's for
free on your website.
you have free eBooks
that you give away
that are lead magnets.
and so you can't tie
directly any actual
financial loss to it.
You can't say, okay,
this is the dollar amount
and the other person
didn't sell it either.
They just took it
and used it as free.
Magnet themselves.
so there's not profits
directly attributable
to that infringement,
but you have statutory
damages that you can get.
So you can just go and say,
Hey, they copy my white paper.
They, distributed
hundred of them.
and so I, by statute get.
can range from a couple
hundred dollars per work to,
tens of thousands, depending
on the circumstances of
that infringement, but you
don't have to prove, lost
sales or prove profits on
the part of the infringer.
So that's very
valuable as well.
And, of course, all these
things require registration
the copyright we're not
talking about copyright
registration here.
But all these remedies require
that your copyright work was
registered in some cases,
you can get attorneys fees.
I mean, suing people requires
lawyers and lawyers cost
money litigation is expensive.
And so to be able to get.
your attorney's fees and cost
of infringer having to pay
for them, are those that's
among the remedies for the
infringement and maybe some
additional damages for really
egregious behavior, someone's
just just a habitual.
Infringer, they may have
putative damages that
can be multiples of what
the actual damages are.
if you are selling licensing,
revenue generating, works,
you know, I always recommend
that any revenue generating
work should be registered and
then keeping records of those.
I imagine you would be if
the revenue generating,
but those records would
be the basis of for your
monetary damages claims in
the event of infringement.
And then in addition to
money damages or monetary
damages, there are things
like injunctive relief.
So an injunction stops
someone from doing the
infringing activity.
So, you would get an
injunction to say, you
Take the white paper off
of your website, or if
someone infringed your,
right of adaptation, they
used your book as the
basis of a course, you can.
Cause them to take down
the course and stop
distributing the course.
and speaking of takedowns,
there's a thing called the
digital millennium copyright
act with takedown notices.
And so let's say you
are surfing the internet
and you see something
of yours on somebody's
website, know, there is
a process for you just to
send a takedown notice.
You don't have to get
a lawyer for this.
And you send to that
internet, to the website.
owner.
Hey, somebody posted my
materials on your website.
You send a takedown notice.
You, you tell them,
you know, this is
mine, blah, blah, blah.
And then they are required
to take that down.
and then, you if it's
something that is a physical
copy, like physical books
that are infringing.
they're be impounded or
require the destruction
of those articles.
if it's something that's
coming from overseas,
they can capture them at
the border, generally not
applicable to what we do.
but still important,
remedies in the event
that those things happen.
So what we just talked
about were all civil
penalties in the event of
a copyright infringement.
So, the question
is, are there also.
Criminal copyright
provisions, and yes, there
are the Copyright Act does
have criminal provisions.
copyright infringement
can be a crime.
So it is a criminal
offense when we willfully
infringe a copyright.
So if it's willfully
committed, and it's for,
financial gain for commercial
advantage, that Can be
criminal, especially when
the value of that commercial
game goes up, the steeper the
criminal penalties are, and
so you can, in addition to
Being sued civilly, you can
also be prosecuted criminally
for the same infringing act.
in terms of elevating
something from kind
of civil liability to
criminal liability.
courts have found
willfulness when a defendant
was given legal notice.
That his conduct was
infringing or when he
had noticed that it was
illegal, and that they
continue to do it anyway.
So for example, you
repeatedly take your
camera phone into advanced
screenings of movies and
record it and put it online.
And then, you you're
known for that.
You've been getting cease
and desist orders from
near the movie studios.
You keep doing it.
The court will likely see
your actions as being willful.
You're intentionally.
there's no negligence.
There's no even ignorance,
you know, exactly
what you're doing.
you can be criminally
charged for that.
other things that may, be
considered criminal offenses.
If you put like a fraudulent
copyright notice on something,
so, you know, something is
not yours, but you claim
it and you put a copyright
notice on it and claim
it, that can be, fraud.
Removing a copyright notice
on something for fraudulent
intent, like for some
reason, something has a
copyright notice on it.
Maybe you're trying to
sell it as your own.
And so you take off the other
person's copyright notice, in
order pass it off as your own.
That can be, Criminal
offense, making a false
representation of a material
fact on the application
for copyright registration.
When you file a copyright
registration, you are
asked to represent that.
It is original that you
are the proper owner.
this will be, significant
in the face of, AI
generated materials.
You need to state honestly,
What the origin of the
material that you're applying
for copyright registration for
and say, if you're knowingly
making false statements
on that application,
you could be criminally
prosecuted for that.
and then willfully,
and for the purposes of
commercial advantage or
private gain, I mean, is
circumventing technological,
protection measures, which
is something that we'll
actually talk about in the.
Third one where we talk
about ways to, avoid, having
your copyright infringed.
But example of that would
be like watermarking.
Like sometimes you will see,
images on the internet that
has a watermark behind it.
You can't just use it.
so there are things that you
can put on something so you
can detect, the origin of
material, if someone were to
steal it and distribute it.
circumventing can be
considered willful.
and therefore, a
criminal, offense.
the penalties for criminal
copyright infringement include
prison time and large fines.
So a first time offender
who's convicted of making
unauthorized reproductions
or distributing at least 10
copies of a work during 180
day period with a retail
value of 2500 or more.
Can be in prison for up
to five years and find
up to 250, 000 or both.
If you've previously been
convicted of criminal
copyright infringement so
you're a recidivist, you
can be sentenced up to a
maximum of 10 years in prison
of the 250, 000 in fine.
Or both and then for
misdemeanors up to 1 year
in prison and a maximum
fine of 100, 000, which
is not insignificant.
that is our overview of.
Copyright infringement, what
it is, the civil penalties
and the criminal penalties
for copyright infringement.
And so, join me in
the next session.
We will talk about how to
make sure you are not guilty
of copyright infringement.
Thanks guys.
See you next time.