Every day, tech businesses around the country wade through the murky waters of copyright law hoping to avoid a copyright infringement claim. You don’t want to be sued, right? Then start learning about copyright infringement with this convenient synopsis.
Images, Music, Programming Code: It’s all Copyrightable
Copyright, as a concept, is the legal right that grants the creator of original work exclusive rights for its use and distribution.
Two parts can use defining here:
- The first is “original work,” which is a term that includes tangible creative works – images, paintings, photographs, written music, recorded music, film, books, poems, or even programming code, among other things.
- The second is the phrase “exclusive rights for its use and distribution.” Essentially, this means that the creator of the copyrighted original work can determine how the work is used or sold, and they have the right to enforce this through civil litigation. (There are some limitations to this right, such as the fair use doctrine, for example.)
In short, if you use copyrighted material for commercial purposes without the permission of the owner, you can be sued.
“Okay,” you say, “I’ll just be sure to either get the permission or not use any copyrighted works.” Although that sounds great in theory, things can quickly get more complicated than that.
Subcontractors Can Expose You to Liability
In a project with many moving parts, you may be held liable for something you haven’t even done.
Intellectual property attorney
Ryan Morrison (@MrRyanMorrison), founder of The Law Offices of Ryan P. Morrison
, specializes in digital entertainment, and he says sees this issue quite commonly in the game space.
“One contractor will make warranties in their original agreement that everything being created for the job is original and new intellectual property,” Morrison says. “However, they then subcontract out the work, that subcontractor steals some art work (intentionally or otherwise), and the original contractor submits it without a thorough check.”
Your business could be liable for the work of your subcontractors, if they happen to commit copyright infringement on their own.
“From contractors utilizing ‘creative commons’ assets that aren’t actually properly open sourced, to lazy or dishonest subcontractors knowingly ripping off other work, you will find a plethora of unintentional infringement being submitted to various app stores or marketplaces from studios and developers,” Morrison says.
If this happens to your business, get ready for the chain of liability that’s sure to follow.
You’re Just a Link in the Liability Chain
Ultimately, the client will be on the hook when the infringement is found out, Morrison says. The client will then have to “collect from the contractor, who will then have to collect from the subcontractor. It’s a very long chain with a plethora of road bumps.”
“Collect,” in this case, may mean suing for damages.
Even if your business doesn’t infringe on any copyright, you could still get dragged into a courtroom if you’re involved in any manner, which is where advertising injury insurance and a General Liability policy come in to help.
General Liability Insurance May Provide Coverage for Copyright Infringement
Most General Liability Insurance policies include advertising injury protection, which can provide coverage in the event that you’re sued for copyright infringement. This coverage can pay for:
- Attorney fees.
- Court costs.
- Settlements or judgements resulting from the claim.
This coverage typically comes with some caveats. If you knowingly steal a copyrighted work, for example, you won’t receive any coverage. Also, the coverage may depend on the type of work you do. If your business is mostly involved with programming or developing code, then advertising injury insurance would probably be included as part of your Professional Liability Insurance, not your General Liability Insurance. Check out your policy for more details or ask your insurance agent.