Infringement, remedies and enforcement online

Infringement happens when someone does one of the copyright owner's exclusive acts without permission and without an exception that applies. For image makers, infringement runs in both directions. Your photographs and videos are copied, reposted, cropped and used in advertising without permission every day. And your own projects can infringe if they include unlicensed music, footage, artwork or photographs. This lesson explains how infringement is proved, what remedies the law offers, and how enforcement works online.

PHOT-410 lesson 4 covers small claims and online infringement from a photographer's business point of view, including how to price a retroactive license. This lesson concentrates on the legal tests and the enforcement systems, and on avoiding infringement in your own work.

Proving infringement

To succeed in a claim, a copyright owner generally has to show three things: that they own a valid copyright in the work, that the defendant copied it, and that what was copied amounts to a substantial part of the protected expression.

Copying can be proved directly, for example by metadata, watermarks, an admission or a screen recording, but more often it is inferred from access and similarity. If the defendant had a reasonable opportunity to see the work, and the two works are similar in ways that are unlikely to be coincidence, a court can conclude that copying occurred. Independent creation is a complete answer: two people can create similar works without infringing if neither copied the other.

American courts ask whether the works are substantially similar in protected expression. Methods vary by federal circuit. Many courts first filter out unprotected elements, such as ideas, facts and stock scenes, and then compare the remaining expression, sometimes through the eyes of an ordinary observer. The Ninth Circuit, which covers California, uses an extrinsic test of objective elements and an intrinsic test of overall impression.

Kinds of infringement

Direct infringement is doing a restricted act yourself, such as copying a photograph onto a website. Secondary infringement covers people who did not copy the work themselves but are responsible for infringement in other ways.

American law recognizes contributory infringement, when someone knowingly induces or materially contributes to another's infringement, and vicarious infringement, when someone has the right and ability to supervise the infringer and a direct financial interest in it. The Digital Millennium Copyright Act prohibits circumventing access controls and removing or altering copyright management information knowingly, with separate statutory damages for violations.

Producers can face secondary liability too. A producer who hires an editor knowing that the edit uses unlicensed music, or a distributor who keeps selling a film after being told it infringes, can be liable along with the person who made the copy.

Remedies

Courts can award several remedies when infringement is proved. The most important for image makers are injunctions, damages and profits, statutory damages, and costs or fees.

• An injunction orders the infringer to stop, for example to take down a website image, recall copies or stop distributing a film. A court can grant an interim injunction before trial in urgent cases.
• Damages compensate the owner for actual loss, often measured by the license fee the infringer should have paid.
• An accounting of profits requires the infringer to hand over profits made from the infringement.
• Statutory damages, available in both countries, let a court award an amount within a range set by law, without proof of actual loss.
• Costs or fees shift some of the legal expenses of the case.

American statutory damages range from 750 to 30,000 dollars per work infringed, at the court's discretion. A court can increase the award to up to 150,000 dollars per work for willful infringement, and reduce it to as little as 200 dollars for innocent infringement. Statutory damages and attorney's fees are available only if the work was registered before the infringement began, or within three months of first publication (Lesson 2).

Attorney's fees are not awarded automatically; a court may award reasonable fees to the prevailing party, considering factors such as the reasonableness of each side's position. Without timely registration, an owner can recover only actual damages and profits, which for a single photograph may be a few hundred dollars, while litigation in federal court costs far more.

fee = 600                  # what permission for this use would have cost
profits = 0                # infringer's profits traceable to the image (hard to prove)
ranges = {"commercial range A": (500, 20000), "range B": (750, 30000)}
print("Actual damages estimate:", fee + profits)
for name, (low, high) in ranges.items():
    mid = (low + high) / 2
    print(f"{name}: minimum {low}, midpoint {mid:,.0f}, maximum {high:,}")

Actual damages estimate: 600
commercial range A: minimum 500, midpoint 10,250, maximum 20,000
range B: minimum 750, midpoint 15,375, maximum 30,000

In the output, the first range is the Canadian commercial range and the second is the American range. For an American photographer who registered in time, statutory damages and the possibility of fees change the negotiation completely. Without timely registration, the claim is worth roughly the license fee, and most photographers settle or use the Copyright Claims Board.

Enforcement short of court

Most infringement disputes never reach a courtroom. A sensible sequence starts with the cheapest tools and escalates only as needed.

• Document the infringement: screenshots with dates and URLs, copies of the page, and evidence of your ownership and original files.
• Ask: a polite request to credit, license or remove often works, especially with individuals and small businesses.
• Use platform tools: notice systems, content-identification services and reporting forms.
• Send a demand letter: set out the claim, the evidence and a proposed license fee or settlement, with a deadline.
• Use a small-claims process or court only if the value and evidence justify it.

American law includes the notice-and-takedown system of section 512 of the Digital Millennium Copyright Act. A service provider that removes or disables access to material promptly after receiving a valid notice is protected from liability. The user can send a counter-notice, after which the provider may restore the material in 10 to 14 business days unless the owner sues. Anyone who knowingly misrepresents infringement in a notice or counter-notice is liable for damages, and owners must consider fair use before sending a notice (Lenz v Universal Music, 2015).

Platforms add their own private systems on top of the law. Content-identification systems on video platforms match uploads against reference files from rights holders and let them block, track or monetize matches. They are fast and cheap, but they make mistakes, especially with public domain material, licensed music and fair dealing or fair use. Filmmakers who license music should keep copies of licenses to dispute wrong claims.

Small claims options

For individual photographers and small producers, the cost of court often exceeds the value of a claim. Lower-cost options exist.

The Copyright Claims Board, created by the CASE Act of 2020, decides copyright claims up to 30,000 dollars in total, without lawyers being required and largely online. Statutory damages are capped at 15,000 dollars per work for timely registered works and 7,500 dollars for works not timely registered, within the 30,000 dollar total. Respondents can opt out within 60 days of being served, in which case the claim ends and the owner must go to federal court. A registration application must be filed before bringing a claim.

Avoiding infringement in your own work

The best defense is not to infringe. Infringement claims against filmmakers and photographers usually come from a handful of predictable sources, and each has a preventive step.

Unsolicited submissions deserve special care. Producers who receive scripts or pitches can face claims that a later project copied them, even when it was developed independently. Many companies refuse unsolicited material or require a submission release, and they keep records of their own development to prove independent creation.

Criminal and border remedies

Deliberate commercial-scale piracy can be a crime in both countries, punished by fines and imprisonment, and customs authorities can detain infringing goods at the border at the request of rights holders. These remedies matter mainly to large rights holders, but filmmakers should know that sharing a screener of an unreleased film can expose the sharer to serious consequences, both under the law and under festival and distribution contracts.

Limitation periods and keeping evidence

Infringement claims must be brought within a limitation period, so delay can cost an owner their remedy. Owners should act reasonably promptly once they discover an infringement, and producers who receive a claim should note the dates involved.

The American Copyright Act requires civil claims to be brought within three years after the claim accrued. In Warner Chappell Music v Nealy (2024), the Supreme Court held that a timely claim can recover damages for infringements more than three years old under the discovery rule used in many circuits, without deciding whether that rule applies.

Keep original files, metadata, contracts and correspondence for as long as the works are being exploited, plus the limitation period. These records prove ownership, dates of creation and the terms of each license.