With access to many ways to showcase our businesses, if it’s via online channels or more traditional ways with leaflets, it’s becoming easier for other businesses to lift your business material without your permission. Though this doesn’t mean it’s legal, as it can be seen as copyright infringement.
Prove that you were the originator of something tangible within the specific timeframe of its creation and your material has been copied or used without your permission by another company, then you are in a strong position to sue for copyright.
So what can you sue against?
The material which we refer to this in this post is defined as something original and ‘tangible’ so not an idea (unless there is something written down). It can include many aspects including literature, software, online content, music, plays and photos and this is not a finite list. Some refer it to be an ‘interpretation of what you can see or hear’ and “a work should be regarded as original, and exhibit a degree of labour, skill or judgement”.
Under the Copyright, Designs and Patent Act 1988 within UK law, a can claim for copyright infringement under UK Intellectual Property rights and the court will make the decision on the penalties.
Unlike other intellectual properties such as trademark, a business’s copyright protection is automatic and there is no requirement to submit an application. It’s important to protect yourself so other companies or even competitors don’t benefit from your expertise, piggy back onto your success or are even being perceived by your customer to be an extension of your company.
Firstly, are your entitled to sue for copyright?
The creator of the material has the legal ownership and rights to how it’s used. According to the Act there are different types of scenarios which will deem to be copyright infringement if the material fits into:
- “Issue of copies to the public”
- “Rental or lending to the public”
- “Performance, showing or playing of work in public”
- “communication to the public”
- “Making an adaptation or act done in relation to adaptation”.
Under common law, the material has to be one of the following in order to be able to make a claim:
- Literary: Includes anything which has been published in print or has been written. This can cover newsletters, adverts, lyrics and technical documents.
- Drama: Refers to a public performance of any type such as play, theatre and dance.
- Musical: As it says on the tin.
- Artistic: This is where the material is ‘creative’ such as creating a sculpture, designing a logo, a painting, commercial architectural plan or photography. Though be careful with this, as an employee who has produced something for work will not own the material, so it may be the employer who owns the copyright according to your agreement of your contract or any terms over how it was commissioned.
- Published material editions: Could include a series of magazines or journals.
- Sound. Refers to recordings which can cover music. E.g. a theatrical production or song.
There is an extension of Copyright law in 1992 for computer programs under The Copyright (Computer Programs) Regulation 1992.
Note: You may think you have protected the material of your business with a Copyright notice though this purely acts as a deterrent. This will include the following on the material: Copyright, symbol, Year publication, owner name.
Examples of copyright infringement
Under the category of ‘artistic’, there was a known case whereby a freelance photographer called Daniel More won an artistic copyright infringement claim. Daniel More tweeted a photo of the Haiti earthquake on his own social media account and discovered that it was being sold by another company. As a result of his legal battle, Getty Images and Agency France-Presse were sued for using his photo for ‘commercial use’ and the court ordered a compensation pay-out of $1.2 million dollars.
Another case around music infringement was when the ‘The Gap Band’ filed a suit against the singers Mark Ronson and Bruno Mars for a song they released in 2014 called ‘Uptown Funk’. Their case argued that it was similar to a song they released in 1979 known as ‘Oops up Upside Your Head’. The outcome of the dispute resulted in ‘The Gap Band’ being awarded credits and a percentage of the royalties.
How to remedy a breach of copyright?
Given that copyright is a civil action and not criminal, some say it is easier to win your case. With the right legal support to identify the best way to make your claim and how to present your evidence, it will give you positive results.
So to remedy a breach of copyright, your first option before taking legal proceedings is to contact the infringer so they are aware of your concerns and ask them to withdraw the use of the material or it will lead to civil legal action. You may discover it was undertaken innocently; they were unaware of their actions or that the licence had expired.
What type of civil action you can take?
If it’s less amicable or you feel there has already been major repercussions for your business, there are different outcomes you can pursue via the Court for copyright infringement which a Solicitor can guide you through:
You can apply for an injunction against the infringer to stop them using your material.
You can ask the court for a specific court order to prove there has been a criminal act and for the material they are using to be destroyed.
You can request the right for ‘seizure’ so you can seize your material. It is advised to notify the police first of your actions so there are no repercussions.
You can apply for compensation damages from the company who is using your material and sometimes an injunction will also be granted.
The pay-out for the damages tends to be calculated on the ‘user principle’. Part of this principle is calculated on what sums would have been agreed for using the material e.g. royalties, license etc.
- ‘Delivery Up’
This term requests the infringer to ‘give up’ the material.
Exemptions where you are unable to sue for copyright
There are some exceptions which do not permit you to sue for copyright infringement if the material:
- Was created at work then the ‘first owner of copyright’ will be the employer.
- Was created on a ‘freelance or commissioned basis’ then ownership has been transferred over by the creator.
- Was created outside of the specific time frame. For instance, A published edition (typographicall element) is protected for 25 years after it was first published (at end of the calendar year).
- Is not perceived to be infringement according to the term of ‘fair dealing’ or ‘ fair use’ within the Act. For instance, if the material is proven to be being used for ‘private and research study’. This is just one example defined as ‘fair dealing’.
How to sue?
When you are ready to sue for breach of copyright, it’s adviseable to take legal support as your Solicitor will understand the rules of the complex jurisdiction to take your claim either through the small claims court or Intellectual Property Enterprise court.
As outlined already, there can be exemptions as well as complications along the way, so it’s important to get your facts and evidence in order.
For example you may not know that if you if you have an exclusive licensee then you will need the support of the copyright owner as co-claimant or you case may collapse.
Minimise your risks and be prepared to ensure your case is successful.