Imagine that you are a cartoonist with a modestly popular website where you post some of your cartoons and illustrations. You've been approached about merchandising (putting your cartoons and illustrations on t-shirts and other merchandise), but you haven't pursued it. One day, when shopping online you come across a site that's selling t-shirts and coffee mugs with some of your cartoons on them. The site is called Betsy and it's an online marketplace for small businesses to sell their goods. When you click on the product pages for t-shirts and mugs with your cartoons on it, you see that the seller is Pinetop Supply LLC, a company you've never heard of
You own the copyright in your cartoons and those copyrights include the exclusive right to reproduce and distribute your work. You didn't authorize Pinetop to use your cartoons, which means that they are infringing on your copyrights. You want them to stop and you want them to compensate you for their unauthorized use. Do you have a claim for copyright infringement? If so, is it against Pinetop? Betsy? Both? In this article, we explain direct and secondary copyright infringement.
First, it's helpful to know how copyright protection works, Copyright law protects the rights of authors, poets, painters, and video makers, among others, with regard to their original works. To qualify for copyright protection, a work must be "fixed in a tangible medium of expression." This means that the work must exist in some physical form for at least some period of time, no matter how brief. Virtually any form of expression will qualify as a tangible medium.
In addition, the work must be original—that is, independently created by the author. It doesn't matter if an author's creation is similar to existing works, or even if it is arguably lacking in quality, ingenuity, or aesthetic merit. So long as the author toils without copying from someone else, the results are protected by copyright.
Finally, to receive copyright protection, a work must be the result of at least some creative effort on the part of its author. There is no hard and fast rule as to how much creativity is enough. As one example, a work must be more creative than a telephone book's white pages, which involve a straightforward alphabetical listing of telephone numbers rather than a creative selection of listings.
Assuming those conditions are met, you can register your copyright with the U.S. Copyright Office. This creates the presumption of ownership, and allows you to sue infringers in federal court. Copyright law gives authors certain exclusive rights to their work. These rights include the exclusive right to reproduce or resell the work.
In the example above, a cartoonist with a website would certainly qualify for copyright protection. The cartoons are original as well as at least minimally creative.
There are two types of copyright infringement: direct and secondary.
Direct copyright infringement is fairly simple to understand. To establish direct copyright infringement in a lawsuit, a plaintiff must prove ownership of a valid copyright, and a violation of an exclusive right under 17 U.S.C. § 106.
In the example of your cartoons being used without your permission, Pinetop is the direct infringer. Pinetop is copying your cartoons onto t-shirts and coffee mugs and selling the merchandise.
But what about Betsy, the online marketplace? Are they aiding and abetting Pinetop's copyright infringement? If so, they might be liable for secondary copyright infringement.
Someone commits secondary copyright infringement when they facilitate or support infringement by the direct infringer. By allowing Pinetop to sell the offering the infringing goods
The precise legal tests for finding secondary infringement liability differ among the federal circuits. However, the basic principles are fairly consistent.
Third parties may be held liable for infringement if they
Put differently, if a third-party person or entity knows that infringement is occurring (even if they themselves did not carry out the direct infringement) and somehow contribute to the infringement and benefit from it, then they can share in liability.
Betsy is arguably contributing to the infringement and is benefiting from it. But are they doing so knowingly? In other words, do they know that the t-shirts and coffee mugs with your cartoons on them are infringing on your (or someone else's) copyright? If so, they are likely liable for secondary copyright infringement.
Now that you know the rights granted by the Copyright Act, the next question is what happens if you see someone infringing on those rights. The Copyright Act allows copyright owners to sue content infringers. In some cases, you can recover significant sums of money.
Note that you must first file your copyright registration before you can sue, though you can do this either before or after the infringement occurs. However, as a practical matter, lawsuits tend to have far more power if the registration occurred before the infringement. This is for primarily two reasons: First, the registration gives you the presumption of ownership, and second, it entitles a victorious plaintiff to statutory copyright damages. With those two factors on your side, copyright defendants are more likely to settle.
If your work is being infringed upon and you're considering a lawsuit for copyright infringement, consult a copyright lawyer who can advise you on your potential case. They can help you to understand the strength of your claim, the litigation process, the amount of money you might win in damages, and the costs associated with bringing a lawsuit. Of course, you also need to consider the defendant's ability to pay a court judgment should you win. Damages are
Let's say that you don't want to sue Pinetop (or Betsy), but simply want them to stop their infringement. In other words, stop using your cartoons, period. One option is to contact Pinetop and Betsy, inform them of the situation, and demand that they cease selling the unauthorized merchandise. You could formalize your demand in a cease and desist letter. The letter can be from you or from your attorney.
Even if you are contemplating a lawsuit for infringement, you'll probably want to send a cease and desist letter as soon as you become aware of the infringement. The letter will hopefully put an end to the ongoing infringement while you consider your legal options.