Have you ever had a great idea for a song, painting, or movie idea only to find out it was very similar to an existing piece of media? Once you found out, what did you do? If you chose to abandon the project and go back to the drawing board, you made a wise choice.
What is copyright? The legal concept protects original works of authorship as well as licensed derivative works—which means that authors can control how people may adapt or repurpose their work.
Copyright infringement is very real—and full of legal consequences in both Canada and the United States. However, some people feel that they are too small to get caught or that the artist who created the copyrighted work will never know.
In short, don’t be that guy. While the internet has made the ability to use copyrighted work exponentially easier than it has ever been, modern algorithms have also made the ability to catch copyright infringers exponentially easier. That’s how copyright attorneys—whether a Toronto copyright lawyer or one in Atlanta—stay in business in the digital age.
According to the 2012-updated Canadian Copyright Act, an infringement that involves selling or renting copyrighted materials can lead to fines of up to $1,000,000 or prison sentences of up to two years. That is no small amount, and those who wander down the path of legal ambiguity often find themselves in a litigious nightmare.
Types of Copyright Infringement
The amount of material subject to copyright infringement is vast. The expansive amount of material such as creative works that individuals can access via the internet makes the policing of this crime difficult.
Those who have material to protect from possible copyright violations—including original work such as writing, photography, graphic art, videos, or sound recordings—must contend with three major categories of infringement: piracy, theft, and freebooting.
This act of stealing copyright-protected material is commonplace. Piracy is the unauthorized distribution, selling, or copying of protected work. While this term originally applied to situations involving financial gain on the part of the perpetrator, the law now also extends to the use of file-sharing programs.
People often misconstrue the concept of theft in terms of copyright infringement. Theft, in this regard, refers to “stealing” from an individual who exercises an exclusive right to the copyrighted material—and does not necessarily refer to theft of physical objects.
Freebooting refers to the unauthorized use of online materials such as original videos that creators have uploaded to YouTube, Facebook, or Twitter. This term emerged in an effort to find a balance between strict copyright infringement and theft of online material.
Landmark Copyright Cases
Vanilla Ice vs. David Bowie
The year was 1990, and America’s first white rapper, Vanilla Ice, was topping the charts with his hit song “Ice Ice Baby.” The success of this artist was in part due to the rapper’s ethnicity, as rap music had been a predominantly African American musical genre. The novelty of a “white rapper” propelled the artist and his song to a Billboard top spot, making it the first rap song to do so.
Vanilla Ice’s explosion of fame instantly propelled the artist to superstar status. However, behind the scenes, musicians were puzzling over the song’s melody and could not ignore its similarity to David Bowie’s and the group Queen’s tune “Under Pressure.”
Bowie and Queen swiftly took legal action against Vanilla Ice, who insisted his bassline was different. After careful reconsideration, Ice settled out of court for an undisclosed fee, as he could no longer deny that he had “sampled” the music from “Under Pressure” for his hit song.
This copyright infringement caused irreparable damage to the artist’s reputation and career, as well as to his personal finances. This landmark legal case illuminated a growing concern in the music industry at the time, as technology was making the ability to sample music much easier, and artists were doing so more often.
The Hangover II vs. S. Victor Whitmill
Following up on the massive success of the original film The Hangover in 2009, the sequel in 2011 was a much-anticipated release. The original had been the highest-grossing comedy film at the time, and fans anxiously awaited a return to the mayhem and hilarity its predecessor had offered.
However, the film release almost ground to a halt when Missouri tattoo artist S. Victor Whitmill filed a preliminary injunction against Warner Bros. Studios for the infringement of a copyrighted tattoo design the artist had created specifically for Mike Tyson (who made an appearance in the film).
A judge initially denied an injunction, stating that it would negatively impact too many parties—but that did not relieve Warner Bros. of its legal ramifications. Despite the judge’s initial ruling, the court allowed the plaintiff’s permanent injunction to move forward.
The defendants argued that their use of the copyrighted image was acceptable under the “fair use doctrine,” which allows for limited use of copyrighted artwork without first obtaining permission from the original creator. However, the judge dismissed this claim of “fair use” as silly and ruled the use of the copyrighted tattoo as an obvious infringement. The two parties settled out of court for an undisclosed fee.
Apple vs. Microsoft
Using a computer today is commonplace, but in the late 1980s, during the infancy of the computer age, a legal battle between giants emerged. The players in this scenario were Apple and Microsoft, two tech juggernauts who were competing to corner the market with the personal computer.
The suit began when Microsoft founder Bill Gates used existing Apple graphical user interface technology in the conception of Microsoft Windows 1.0. At the time, the two companies worked closely with one another, so the threat of litigation was largely posturing. The two parties came to an agreement that allowed Microsoft access and use of Apple-licensed design elements.
Not until the release of Windows 2.0 did the situation escalate since this version had incorporated even more design elements from the Apple MacIntosh system than before. The furious Apple executives bypassed settlement measures and went straight to legal proceedings.
This case reached the U.S. Supreme Court, which ruled in September 1994 in favour of Microsoft. Apple’s legal team had missed a key element in the agreement over Windows 1.0, which had granted Microsoft the license to use Apple features in Windows 1.0 and all future Microsoft software programs. This overlooked section of the agreement negated Apple’s claims of copyright infringement, thus leading to Microsoft’s victory in the case.
Protecting Intellectual Property in the Digital Era
Copyright infringement is no small matter. Although the ease by which it is possible in the age of the internet makes it alluring to potential perpetrators, many companies and individuals go to great lengths to protect their intellectual property, as they should.
Piggybacking off the hard work and talent of others for personal gain offers few roads to success, and both the Canadian and the U.S. judicial systems acknowledge this fact. Further, as we have seen in the historic cases above, copyright issues impact all of us since they involve the movies we watch, the music we listen to, and the computers we use.
The diligence it takes to secure the protection of one’s intellectual property is paramount to the artists who provide the world with the media we know and love.
So the next time you think you may take the easy route and use that image from Google—don’t! It’s against the law.