Topics in Copyright Law: Cease and Desist Letters, Fair Use, and Plagiarism

Cari Rincker Intellectual Property Leave a Comment

For an introduction to copyright law, see my previous blog post on Copyright Law: Six Common Questions and Answers.  This blog continues to build on the subject of copyright law, exploring three additional topics: Cease and Desist Letters, the Fair Use Exemption, and Plagiarism.

What is a Cease and Desist Letter?

A Cease and Desist Letter is used in copyright law to send notice to a copyright infringer that they are infringing on a copyright.  The letter lets the infringer know that the copyright owner is aware of the infringement, and that he or she is prepared to enforce the copyright in court if the infringement does not stop.  A successful Cease and Desist letter will explain and evidence how the copyright is being infringed, and it will usually make certain demands of the infringer in order to avoid an enforcement action.  Such demands may include the termination of the infringing activities, a monetary settlement, and proof of compliance.  A Cease and Desist letter is a low-cost and effective tool to address copyright infringement; it is usually a good idea to send one and see if it pans out before pursuing expensive copyright litigation.

What is the Fair Use Exception to Copyright?

“Fair use” is an exception to the basic principal that copyrighted work cannot be reproduced without the permission of the copyright owner.  Under this exception, reproducing copyrighted work in certain ways or for certain purposes is considered the “fair use” of the work, and is therefore not actionable copyright infringement.  The fair use of a copyrighted work includes reproducing it for the purposes of criticism, comment, news reporting, teaching, scholarship, or research.  The following factors are often examined in determining whether the fair use exception will apply:

  • Whether the use of the copyrighted work is for nonprofit or educational purposes (favored) or commercial purposes (not favored);
  • Whether the copyrighted work is highly technical or factual (favored) or highly creative (not favored);
  • Whether the amount of the copyrighted work that is reproduced is small in relation to the size of the copyrighted work as a whole; and
  • Whether the use of the copyrighted work will have a significant effect on the potential market for, or value of, the copyrighted work.

What is the Difference between Copyright Infringement and Plagiarism?

Copyright infringement and plagiarism often overlap, but they are two distinct issues.  Plagiarism is an ethical issue, and it involves passing someone else’s words or ideas off as your own, without giving credit.  While plagiarism is not illegal, it can still have significant professional, academic, or social consequences.  On the other hand, copyright infringement is a legal issue that involves using someone else’s protected work without permission or a license.  Unlike plagiarism, copyright infringement has certain legal consequences for the infringer.   While the same action can constitute both plagiarism and copyright infringement, it is also possible to have one without the other.  For example, plagiarism is not copyright infringement when someone plagiarizes work that does not have copyright protection (e.g., something published by the U.S. government), or when someone plagiarizes work in a way that satisfies the fair use exception to copyright infringement.  Alternatively, copyright infringement is not plagiarism when someone reproduces copyrighted work and gives full credit to the author, but still does not have permission from the copyright owner for the reproduction of the work.

If you are looking for assistance with an intellectual property issue, contact our law office and schedule a consultation.

 

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