Copyrights laws protect the creator/owner of creative materials, including writings, photos, illustrations, and other such works. The Copyright Act gives the owner of a copyright the exclusive right to copy, use, distribute, display, or otherwise make use of the work. To gain protection, a work need not be registered; however, if the work is registered, its owner gains additional remedies in the event of an infringement.
Using a copyrighted image, especially on a website, is very likely to draw a copyright infringement claim from the owner of the work. By using the internet, it is very easy for copyright owners to find unauthorized use of their work. In order to prevail on a copyright claim, the owner has to prove ownership of a valid copyright, and that some or all original elements of the copyrighted work were copied. The specific facts to be proved by a plaintiff in a copyright case vary on a case-by-case basis, but it is always fundamental to prove the existence of a copyright, and that the copyrighted work was copied.
If a copyright infringement lawsuit has been filed against you, there are a number of defenses available to assert, including the fair use doctrine, the statute of limitations, or other fact-dependent issues that excuse or mitigate the use of a copyright. In our practice, we have also seen copyright claims filed in a jurisdiction convenient to the copyright holder, which are dismissed for jurisdictional reasons, and are never refiled.
If your business has encountered a copyright issue, contact us for a free consult.