Infringement is actively breaking the terms of a law agreement, or acting to limit or undermine something.
Copyright infringement happens when someone uses the work protected without permission, usually by creating and distributing a copy. Infringement defrauds the rightful owner of the work.
It depends on how they are using it. For example, someone sharing an image or quoting part of a written work, as in a book review, may be allowed under fair use.
- Send a cease and desist letter.
- Reach out the infringer to see if a licensing agreement can be reached. The infringer may give a promise they will license the work from you.
- Try Mediation- see if both you and the infringer can come to an agreement with a third party acting as a mediator.
- Sue the infringer in court.
The plaintiff will have to establish ownership of a valid copyright. Then both actual copying and improper appropriation of the work will need to be established.
The plaintiff in an infringement case will need to establish actual copying by the infringer. This is done by either direct or indirect evidence. Direct evidence is either admission by the defendant, or testimony of witnesses who observed the defendant in the act.
Usually, a plaintiff will have to rely on indirect evidence- where the court will infer by showing a striking similarity between the copyrighted work and the alleged copy, and the defendant possessing a copy of the work.
With actual copying demonstrated, the plaintiff will still need to show misappropriation.
In an infringement case, the plaintiff will need to show that the defendant appropriated protectable elements from the copyrighted work, and that the intended audience would recognize substantial similarities.
The court could issue an injunction for the violator to stop. There may be provisions for impounding allegedly infringing copies. Damages and/or profits may be awarded and possibly attorney’s fees.
The Copyright Act also provides for criminal prosecution in some cases of willful copyright infringement.
Fair use is an exemption allowing use copyrighted materials apart from the owner’s permission. The intent is to allow such usage for the benefit of society. A classic example is quotes from a book for a book review. Section 107 of the copyright act specifies purposes such as “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research is not an infringement of copyright.”
The purpose and character of the use; is it used for commercial benefit or non-profit, educational purpose, will effect the judgment as to whether the usage was considered fair use.