Evaluating Risks

Infringement | Adaptation Right | DMCA Violations | Impact on Publication

There are many risks which may arise from the unauthorized or illegal use of copyright-protected works. These risks include: 

• Lawsuits
• Fines
• Imprisonment
• Impact on publication

What will happen if you use a work without permission? Will you get caught? Will you get sued? These are never results one could accurately predict. However, a consequence of using a work without permission is that you may get caught and yes, you may get sued. If misuse is found to be willful, criminal charges could apply as well as civil. 

Copyright content can be very valuable and owners may routinely search to see if their material is being used without permission and may take steps to enforce their rights. You also may find it difficult to publish a work or license a work to others if you can’t show you have permission to use works created by others.

Penalties for infringement may include:

• Injunctions
• Destruction of infringing articles
• Damages and profits
• Costs and attorney’s fees
• Criminal charges

Violating any of the exclusive rights of a copyright owner constitutes an infringement of the copyright. Infringement can occur with or without the infringer’s knowledge, and with or without any intent to infringe. This means that you can be guilty of infringement even if you didn’t know you were doing it and didn’t mean to!

When any right of the copyright owner is infringed the owner can sue the individual directly responsible for the infringement, as well as others who may have contributed to the infringement either directly or indirectly. The infringer could be ordered to pay either the cost of the actual damages to the owner or statutory damages that start from $750 up to $30,000 per offense, and up to $150,000 per offense if the infringement is found to be willful. In addition, if the infringement is found to be willful and for commercial purposes, criminal charges may apply.

The old adage that “ignorance is no excuse” holds true for copyright.

We are all responsible for knowing the copyright rules and abiding by them. Knowing and abiding by the rules of copyright will help avoid a claim of infringement.

• Copyright owners have six exclusive rights, including: the exclusive right to copy, adapt, distribute, display, and perform the work.
• Be aware how your use of a work will be viewed with respect to these six rights.
• If your use is not clearly within one of the exemptions or a license, you need permission to use the work.

Sometimes it is impossible to find the owner of a work or obtain permission. Publishers go out of business, authors may be deceased and heirs are not known, or a work found on the Internet may not have any information to identify who owns the work. What happens if you know you need permission but you can’t get it?

• The best answer is not to use a work if you don’t have the permission you need.
• If you proceed, you run the risk of being charged with willful infringement.

• Consider using an alternate work for which you can obtain permission or don’t need permission.
• Consider if it is possible to point your audience to the work, such as a link to a website or to a resource in the library, rather than copying a work.

Anyone that has worked in a creative endeavor knows that many new works build to one degree or another on the earlier works of others. From the copyright perspective, when is building on the works of others considered a proper inspiration and when is it considered improper infringement?

It is hard even for courts to draw the line between the two. It is fairly easy to determine whether a work is copied in its entirety. It is harder to determine if a work that is similar to another is an unauthorized adaptation.

You can be inspired by and reuse ideas, facts, or style of another’s earlier work to form a new work without infringing a copyright. This is because these elements of a work are not protected by copyright and thus they can be reused and recast into new original expression.

To copy all or part of an earlier author’s copyright-protected expression in a new work may infringe the earlier author’s rights.

For information on DMCA penalties, see the Digital Millennium Copyright Act (DMCA) section under Copyright Law.

For information regarding the UW and DMCA, see UW Compliance with the DMCA.

For UW authors and editors, using copyrighted works presents additional issues.

If you don’t have permission to use the copyrighted work:

• Publisher may not accept the work
• You could assume liability

Most publishers ask authors to sign some kind of a statement that certifies that the entire work is the original work of the author or authors and that it does not contain any materials owned by someone else.

Publishers ask authors to provide documentation or licenses for all materials that you have used. If you can’t provide documentation that supports your use of the materials, the publisher may decline to publish the work.

Publishers further protect themselves and ask you to indemnify them if they get sued for infringement. This means that you’ll be paying for their legal expenses, damages, losses, and settlements, as well as your own.

When considering a work for publication, be sure to consider whether or not you’ll need to obtain permission to use other people’s materials and if so, obtain permissions early in the development process to avoid any problems at the time of publication.