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What can happen if you infringe someone’s copyright?

Game lawyer Zachary Strebeck looks at some of the common consequences of copyright infringement, including DMCA takedowns and statutory damages.

A look at the common consequences of copyright infringement

I’ve been asked to discuss what could potentially happen to a game developer if they are sued and found guilty of copyright infringement. Because the circumstances can vary wildly and you never really know, I’ll list many of the common types of damages and results. That should give readers a good idea of why it’s a bad idea to use others’ copyrights!

The cease and desist letter

These are no fun to get, but they are the least worst thing that can happen.

One of the first steps that a copyright holder often takes is sending what’s called a Cease and Desist letter. This usually allows a copyright holder to deal with the situation for a very small cost (as opposed to filing a lawsuit, which is really, really expensive). I’ve written about these before in the board game trademark context on Jamey Stegmaier’s Kickstarter Lessons blog. However, they apply just as much to copyrights.

Basically, the letter will tell you:

  • That the copyright holder has certain rights and explain the copyrighted material;
  • Where you have infringed on that copyrighted material;
  • That you should stop infringing; and
  • If you don’t, they will take further legal action.

These are no fun to get, but they are the least worst thing that can happen. If you get the letter and realize that you are, indeed, infringing – you should probably stop to avoid further issues. Otherwise you can open up a dialogue with the ones who sent the letter to try and work something out if you fall under Fair Use, for instance.

The DMCA takedown notice

Another relatively cost-effective solution to copyright infringement is sending a DMCA takedown notice to whoever is hosting that infringing content. If the host doesn’t disable access to the content, they could open themselves up to a copyright infringement lawsuit themselves.

If your content gets taken down because of this, you can file a counter notice to get it put back up. The copyright owner will then have to file a lawsuit to keep the content down.

I have a course on Udemy that discusses DMCA takedowns from both sides, along with sample letters and how to track down the web host. Check it out here with a half-price coupon code.

A lawsuit? Proving actual damages

So, they’ve filed a copyright infringement lawsuit against you?

Assuming you don’t settle right away (because defending a lawsuit is unbelievably expensive), the copyright holder will have to show their actual damages.

Assuming you don’t settle right away (because defending a lawsuit is unbelievably expensive), the copyright holder will have to show their actual damages. This means that the copyright owner has to show evidence of how much they’ve actually been damaged by the infringement. Then, the court will take a portion of profit that was made off of the infringement.

This is kind of difficult to show with any certainty, which is why companies usually file copyright registrations for their work. This allows them to take advantage of statutory damages.

The big one – statutory damages

I’ve written about statutory damages before as the reason why creators should be registering their work within 3 months of publication. Here’s a quote that explains why:

“In the case of copyright law, the statute allows for recovery of statutory damages in the amount of anywhere from $750 to $30,000 per infringed work, as the court deems appropriate. However, if the plaintiff can show that the copyright infringement was willful, the court can bump up those damages to $150,000 per work. This could be a very large damages award in cases of multiple infringements (multiple stolen blog posts, pirating and distributing multiple online courses, etc.).”

A timely registration on the part of the copyright holder can also make the infringer liable for attorneys’ fees, as well.

Altogether, this is bad news for someone found guilty of copyright infringement. Try not to do it!

Just a quick note: I’m a US lawyer, so this is all US-centric material. I may return in an upcoming post to discuss some international copyright infringement damages.

For assistance with your copyright questions, why not contact a lawyer? If you need help drafting game-related contracts, check out my new site, indieGenerator. It allows you to build contracts for you game development for much less than hiring an attorney.

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