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Today, with the advent of copyright protection software, it is very easy for copyright owners to find unauthorized use. This software uses bots to scour the internet for unauthorized use, making it increasingly hard to go unnoticed. A far too frequent scenario of late, is that a client copies a photograph for use in their marketing on their website, blog or social media, and is then surprised when the owner of copyright in that photo sends them a stern letter to cease and desist use of that photograph under threat of costly litigation in federal court.  In most cases, it is an innocent mistake as they simply have a lack of understanding of the complexities of copyright law.  Unfortunately, an infringement even if “innocent” under applicable law is still an infringement, which may result in damages in an infringement lawsuit.  Therefore, an explanation of copyright and copyright law is warranted.

Copyright protects original works of authorship, including photographs, from making an unauthorized identical or substantially similar reproduction of that work.  Such unauthorized use is referred to as an “infringement.”  In the U.S., copyright law is solely governed in accordance with the federal United States Copyright Act of 1976 that has been in effect since January 1, 1978.

Unlike its predecessor copyright act, under the 1976 Act copyright attaches automatically and vests in the creator of from the time the work is created and fixed in a tangible medium.  The creator is the work is the exclusive owner of the copyright in that work and may be a person or a business entity.  Importantly, the 1976 Act no longer requires either use of copyright notice or registration with the U.S. Copyright Office to perfect and maintain copyright, although both retain vitality for other legal reasons. 

The term of copyright endures for the life of the author (if a person) plus 70 years or if a business, for the first to expire of either 95 years from the date of first publication of the work or 120 years from its creation.  In either case, exclusive copyright lasts for a very long time   Upon the expiration of the applicable duration, copyright terminates, and the work goes into the public domain for all to use.

A final word of caution. Unless there is either is some type of written authorization, on the internet or other agreement from the copyright owner or under a specific and limited statutory provision, such as fair use, expressly permitting others to copy an otherwise protected work, assume that the work you intend to copy is subject to copyright.  Finally, it is also prudent and good practice to seek the opinion and advice of an experienced attorney.

Disclaimer: Nothing in this article constitutes legal advice. Please consult with an experienced Intellectual Property Attorney before making any legal decisions.