If your New Jersey business receives a copyright infringement notice, it is imperative that you act swiftly but not irrationally. A copyright infringement notice may seem scary, but more often than not, the remedy is as simple as paying an after-the-fact fee and/or ceasing to use the copyrighted material. However, before you act, it is important to analyze the claim, make sure it is legitimate and explore your legal options.
The World Intellectual Property Organization defines copyright infringement as the use of protected work by someone or some entity that does not own the rights to the property. The property can be a book, a photograph, a song, an article or an asset of similar nature. By law, you cannot make copyrighted property publicly available without the permission of the party that holds the copyright.
WIPO further goes on to explain what you should do if you receive a copyright infringement notice, or a “demand letter,” as legal professionals commonly refer to such as notice as. First, you should determine the validity of the claim. Are the supposed copyrighted materials ones you are actually using, and are you using the materials in the manner which the demand letter claims? If so, are the materials actually protected or are they available in a public domain? If they are protected, did you purchase rights to materials or gain rights via permission? If so, do you have proof of purchase or permission?
Even if you have permission, it is important to review the terms of the contract. If the owner of the materials gave you permission to use the property for six months but you continue to use it for a year, then the claim is valid. Furthermore, the contract may state that you can only use the materials on your website, but you used it in a pamphlet. Again, you may be guilty of copyright infringement. In both these instances, the other party may also hold you accountable for breach of contract.
Once you have determined the validity of the claim, you should then decide if your use of the materials was “fair.” Those accused of copyright infringement can always turn to the “fair use” defense, which allows parties to use copyrighted protected work for parody, commentary, news reporting, education and research. Fair use laws are often confusing and difficult to apply, however, and many legal professionals are hesitant to use it.
The information in this post is for educational purposes only. It should not be construed as legal advice.