What Happens If I Infringe on Someone’s Copyright?

As an attorney for startups and up-and-coming companies, I am often asked questions such as these:

“do I need permission to use someone else’s song in my Kickstarter video?” or “what will happen if I just use it?” or “if the band or label catches me, they can just tell me to stop, right?”

To answer those questions, it is important to explain the basic underlying concept of Federal Copyright law, so read a brief explanation here..

Simply put, if you are using a creative, intellectual or artistic work without the owner’s permission, then you are infringing on that party’s Copyright. Even if the Copyright is not registered, the Copyright owner can sue you to try and recover ‘Actual Damages’. This means that the Copyright owner can take you to court and have a jury decide what the actual monetary harm is.

If a Copyright is registered with the Library of Congress before and you infringe, then the Copyright owner can sue you for ‘Statutory Damages’ (under 17 U.S. Code § 504). Here, no proof of actual harm is needed. The range of the award amount is written into the code: $750 to $30,000 for each work infringed.

If there is evidence of willful infringement (ie. the infringer knew or should have known about the fact that the work is copyrighted), then the award can go up to $150,000 for each work infringed. In such cases, the Copyright owner can also recover attorneys fees and other costs of the lawsuit from you. The actual amounts that are awarded are at discretion of the judge.

Keep in mind – a single ‘work’ can be subject to multiple Copyrights from different parties. In the case of a song, rights to the music, lyrics, and recording can all belong to different parties.

This explanation obviously does not apply if the work is in the ‘Public Domain’ (either due to the Copyright’s expiration or by the work creator’s choice). If you plan on using the ‘Public Domain’ exception, make sure that all elements of the work you want to use are covered.

If you are interested in more detail related to your situation it is best to speak with an attorney.