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Intellectual Property & Branding

Copyright Infringement: A Guide for Startups

Promise Legal Staff

• 3 min read
Copyright Infringement: A Guide for Startups

For startups, creative works—from software code and marketing copy to design assets and multimedia—are often at the heart of your value proposition. Understanding and managing copyright infringement risks is crucial to protect your innovations, maintain credibility, and avoid costly litigation.

Copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner. Copyright serves as a legal cornerstone for protecting creative works, giving authors and artists exclusive rights to their creations, which fosters innovation and encourages the creation of new works.

Copyright law grants several exclusive rights to copyright holders that protect their creative works. The primary rights include:

  • Reproduction: The right to make copies of the work in any form, physical or digital.
  • Distribution: The right to sell, lease, or otherwise distribute copies to the public.
  • Display: The right to show the protected work publicly, such as images on a website.
  • Performance: The right to perform dramatic, musical, or audiovisual works publicly.
  • Creation of Derivative Works: The right to adapt or transform the original work into new creations (e.g., translations, sequels).

Startups should watch for these common infringement scenarios:

  • Unauthorized Copying: Making or sharing copies without permission—whether photocopying a guide or downloading a paid image without a license.
  • Unlicensed Distribution: Selling or sharing works (e.g., software, e-books, music) on filesharing platforms or via torrents.
  • Online Piracy: Streaming or hosting movies, music, or software on unauthorized websites. Digital piracy costs the U.S. economy about $29.2 billion annually. (US Chamber)

4. Notable Supreme Court and Appellate Cases

  • Feist Publications v. Rural Telephone Service Co. (1991): Facts and ideas are not protectable—only original expression is. Startups cannot copyright raw data or facts.
  • Campbell v. Acuff-Rose Music, Inc. (1994): A commercial parody can be fair use if it adds new expression or meaning.
  • Star Athletica v. Varsity Brands, Inc. (2017): Useful article separation test—design elements on functional items can be copyrighted if they can be separated from functionality.
  • Fogerty v. Fantasy, Inc. (1994): Prevailing plaintiffs and defendants in infringement claims can recover attorney’s fees, encouraging meritorious defenses.
  • Georgia v. Public.Resource.Org (2020): Government edicts (e.g., statutes, judicial opinions) are not subject to copyright, ensuring public access to the law.
  • Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith (2023): Determined that not all transformative uses qualify as fair use—repurposing a photograph into commercial art may infringe.

Common defenses startups can consider:

  • Fair Use: Analyzes purpose (commercial vs. educational), nature of the work, amount used, and market effect. Transformative uses often weigh in favor. (U.S. Copyright Office)
  • DMCA Safe Harbor: If you operate a platform, implement a repeat infringer policy, designate a takedown agent, and promptly remove infringing content upon notice to avoid liability. (Copyright Alliance)
  • Licensed Content Strategies: Use properly licensed stock assets, open source libraries with compatible licenses, or negotiate custom licenses to ensure clear rights.
  • Audit Your IP: Inventory all creative assets—code, designs, marketing materials, and third-party libraries.
  • Implement Copyright Policies: Create internal guidelines for employees and contractors regarding work ownership and permitted content use.
  • Obtain Licenses Proactively: When using external assets, secure proper licenses in writing, specifying scope, duration, and fees.
  • Train Your Team: Conduct regular workshops or share resources on copyright basics and company policies.
  • Monitor Content: Use automated tools and manual spot checks to detect unauthorized use of your IP and to ensure user content on your platform complies.

7. Actionable Checklist and Resources for Startups

  • Conduct an IP audit—identify and document all copyrighted works.
  • Register key works with the U.S. Copyright Office for statutory benefits.
  • Establish a DMCA takedown procedure and designate an agent.
  • Draft standard license agreements and review open source license obligations.
  • Develop an internal copyright policy and train staff.
  • Set up content monitoring alerts for infringement.
  • Consult an IP attorney for complex issues.

Resources:
• U.S. Copyright Office: copyright.gov
• Digital Millennium Copyright Act summary: DMCA PDF
• Stanford Copyright & Fair Use site: fairuse.stanford.edu
• Creative Commons Licenses: creativecommons.org/licenses

By understanding these fundamentals and implementing clear procedures, startups can effectively navigate copyright infringement risks, protect their innovations, and focus on growth and creativity.