The general rule for copyright infringement is:
Infringement = exercising one of the copyright owner’s exclusive rights without the copyright owner’s permission or without a legal exception
(1) To infringe a literary, musical, artistic or dramatic work, the copy does not have to be exact. It just has to be substantially similar. For example, let’s pretend that the Mona Lisa is still protected by copyright and is not in the public domain. I could infringe copyright by making an exact copy – e.g. by colour photocopying the painting. But I could also infringe copyright by sitting down in front of the Mona Lisa and trying to recreate it by painting by own version. I won’t be able to make my painting look exactly the same as the Mona Lisa (it would look a lot worse), but I will still be making a substantially similar copy.
(2) Conversely, to infringe a sound recording, cinematograph film or a published edition, the copy does have to be exact. In other words, I can infringe a sound recording by burning a CD or copying an mp3 file. But if I were to sit down and record myself playing the same music from a sound recording on my guitar, that would not be an infringing copy of the sound recording (though it may be an infringing copy of the underlying musical work).
(3) You do not have to copy the entire work to produce an infringing copy. The law says that you have to copy a “substantial part”. This is a little misleading, because it makes it sound like you need to copy a lot to infringe copyright. You don’t. What the law means here is that the part you copy should be more than trivial. Even copying a small part of something can be infringing so long as it is not trivial. What the court looks at is the quality of what is copied rather than the quantity. So, for example, copying the chorus from a song is likely to be substantial because the chorus is usually central to the song and memorable, even if the chorus is not substantial (in terms of quantity) when compared to the length of the verses.
What can happen to you if you infringe copyright?
If you get sued for copyright infringement, there are two main remedies that a court may order against you.
(1) An injunction – this is basically a legal order that you must stop using the copyright work.
(2) Damages – the legal term for money ($). You might be required to pay the copyright owner a certain amount to compensate them for using their work without permission.
Where to from here?
You will be happy to know that this marks the last of the heavily legal posts. Now that we have a foundation in place for a basic working knowledge of copyright law, I’ll be able to get to the posts that are more directly relevant to your interactions online. Coming up soon:
- Where to find content that is free to use on your blog (such as photographs)
- How to ask for permission to use a copyrighted work
- When you don’t need permission (legal exceptions to infringement)
Plus, very soon I’m going to dive into the legalities around collaborations – how to decide who owns what, and things to talk about before you collaborate. So there are lots of exciting posts on the horizon. Catch you next week!