Copyright infringement definition
Under US law, an infringer is "anyone who violates any of the exclusive rights of the copyright owner" (Copyright Act § 501(a)). Section 106 gives the owner alone the right to:
- reproduce the work (make copies);
- prepare derivative works (translations, adaptations, remixes, sequels);
- distribute copies to the public, by sale, rental or lending;
- perform it publicly (text, music, plays, film and video);
- display it publicly (text, images, the individual frames of a film);
- for sound recordings, perform them publicly by digital audio transmission (streaming).
Doing any of these without a licence or legal exception is infringement, or "copyright violation". Uploading a photo is reproduction and public display; reposting a video, reproduction and public performance.
What the owner has to prove
Feist v. Rural Telephone (1991): "(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original."
- Ownership of the copyright, or an exclusive licence for the right in question. A registration made within five years of publication is prima facie evidence of validity.
- Copying, often obvious online: the same file or text. Otherwise courts infer it from access to the original plus a strong resemblance.
- Substantial similarity: would an ordinary observer recognise that the protected expression was taken? Neither exact nor whole copying is required.
Not protected
- Ideas, facts and methods
- Short phrases
- The same facts reported in different words
Protected
- The work's original expression
- A small but central part of it
- A close paraphrase of its structure and wording
Intent doesn't matter to whether you infringe, only later to damages. That's why "no copyright infringement intended" achieves nothing (see copyright disclaimers).
Copyright infringement examples online
| Scenario | Infringing? | Why |
|---|---|---|
| A full news article on your blog, with a credit link | Very likely | Credit isn't permission; the whole work was copied |
| A photo from Google Images illustrating a post | Very likely | Publicly visible isn't free to reuse |
| A competitor's product descriptions | Likely, if original | Descriptive copy is protected; bare specifications are facts |
| An article's facts in your own words | Usually not | Facts aren't protected; close paraphrase of structure and wording can be |
| Commercial music behind a monetised video | Likely, unless licensed | Reproduces and performs the song and the recording |
| T-shirts printed with a cartoon character | Very likely | Reproduction and distribution, often trademark issues too |
| Two sentences of a book quoted in a review | Usually not | A classic fair use |
| Films or software shared peer-to-peer | Yes | The Copyright Office treats unauthorised uploading and downloading as infringement |
| A user posts infringing material on your forum | The user infringes | Your exposure depends on DMCA safe-harbour compliance |
| A work whose copyright has expired | No | Public-domain works are free to use |
Owners usually start with a takedown notice, not a lawsuit: see how to report copyright infringement.
Copyright infringement damages and remedies
| Remedy | What it means |
|---|---|
| Injunction (§ 502) | A court order to stop, temporary or permanent |
| Impounding (§ 503) | Seizure, and eventually destruction, of copies and the means of making them |
| Actual damages and profits (§ 504(b)) | The owner's losses plus the infringer's profits, not counted twice |
| Statutory damages (§ 504(c)) | Instead of proving losses: $750–$30,000 per work, as the court considers just. Up to $150,000 if wilful; as low as $200 if the infringer proves no reason to believe it infringed |
| Costs and attorney's fees (§ 505) | At the court's discretion, to the winning side |
Statutory damages count per work, not per copy, and the owner can choose them any time before final judgment. So claims can be costly even when little money was lost.
Why registration matters
- To sue. § 411(a) bars a civil action over a US work until registration is granted or refused. Fourth Estate v. Wall-Street.com (2019): a pending application isn't enough.
- For statutory damages and fees. § 412 blocks both if infringement began before registration, unless a published work is registered within three months of first publication. Late registration still allows actual damages and profits.
So "poor man's copyright" doesn't help. Smaller claims can go to the Copyright Claims Board, a voluntary Copyright Office forum capped at $15,000 per work and $30,000 in total.
Statute of limitations for copyright infringement
- Civil: three years from when the claim accrued (§ 507(b)). Each infringing act starts its own clock (Petrella v. MGM, 2014), so a page still showing a copied photo can be sued over; only the older acts drop out.
- Discovery rule. Many courts start the clock when the owner discovered, or should have discovered, the infringement. Warner Chappell Music v. Nealy (2024) assumed that rule without deciding it, and held a timely claim recovers damages however far back the infringement went.
- Criminal: five years after the cause of action arose (§ 507(a)).
Is copyright infringement a crime?
Usually not: most cases are civil. Under § 506(a) it is criminal only if wilful and one of:
- for commercial advantage or private financial gain;
- copies with a total retail value over $1,000 within any 180-day period;
- putting a work being prepared for commercial release, such as an unreleased film, on a public computer network.
Evidence of copying alone doesn't prove wilfulness. Under 18 U.S.C. § 2319, commercial infringement of at least 10 copies worth over $2,500 within 180 days carries up to five years in prison, more for a repeat felony. The government prosecutes, not the owner, and rarely an ordinary website.
Defences to copyright infringement
| Defence | When it applies |
|---|---|
| Fair use (§ 107) | Criticism, comment, news, teaching, research and similar, judged on four factors. How fair use works |
| Licence or permission | Written, stock or Creative Commons with its terms met, or implied by the circumstances |
| Independent creation | You made it without copying. Feist: close resemblance is fine if "fortuitous, not the result of copying" |
| Not protected expression | An idea, fact, method, title or short phrase was taken |
| De minimis | Too trivial to matter. On music samples the Sixth Circuit rejects it for sound recordings; the Ninth accepts it |
| Public domain | The term expired, or it was never protected (for example, most US federal government works) |
| Time-barred | The act was more than three years before the claim (subject to the discovery rule) |
The DMCA safe harbours protect hosts and search engines that remove material promptly once notified. They don't protect the person who posted it.
What a DMCA notice has to do with it
A DMCA takedown notice is how most owners act without going to court. It tells the host, platform or Google that specific URLs infringe, with a good-faith belief the use is "not authorized by the copyright owner, its agent, or the law". The recipient removes or delists to keep its safe harbour. No registration is needed.
A notice is an untested allegation, not a finding. Notices to Google Search are published. Received one? See what a copyright infringement notice means.
FAQs
What is the simplest definition of copyright infringement?
Using a copyrighted work in a way only the owner may, such as copying, adapting, distributing, performing or displaying it publicly, without permission or a legal exception like fair use.
Is copyright infringement illegal if I give credit?
Yes. Credit is not permission. It can be a condition of a licence such as Creative Commons, but on its own it doesn't make an unlicensed copy lawful.
What is the statute of limitations for copyright infringement?
Three years for civil claims and five for criminal prosecutions (17 U.S.C. § 507). Each new infringing act starts its own three-year period, and many courts count from when the owner discovered the infringement.
How much are copyright infringement damages?
Either the owner's actual losses plus the infringer's profits, or statutory damages of $750 to $30,000 per work, up to $150,000 if wilful. Statutory damages and fees generally require timely registration.
Is copyright infringement a crime?
Only when it is wilful and either for commercial advantage or private financial gain, involves copies worth more than $1,000 in 180 days, or leaks a pre-release work online. Most cases are civil.
Can I be sued for infringement if I didn't know the work was copyrighted?
Yes, intent isn't required. Innocence can reduce statutory damages to as little as $200 per work, but not if a proper copyright notice appeared on the published copies you accessed.
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