Proving infringement
Infringement is decided on a case by case basis. If you think your work has been infringed, you’ll need to provide some proof of the infringement. It’s always a good idea to keep records of your work, in case you need to rely on them at a later point to prove authorship or date of creation.
Evidence examples
To show that another artist, creative or company used your work without your permission, gather evidence of what you believe is the infringement. This is anything proving your work was accessible and used without your permission, for example screenshots or photographs of the unauthorised use.
Establishing a connection
A connection between the original and the copy which suggests that the copy derived from the original helps decide if infringement has occurred. This could depend on factors like:
- availability – for example, could the original work have been accessed online or at a public exhibition?
- communication – for example, did the infringing party discuss using the original work or comment on it on social media?
Awareness of original work
Copyright infringement is a ‘strict liability’ offence. This means it does not matter if the person or organisation claims they did not know the work was copyrighted and that their use was infringing that copyright. If they were aware of the work and used any of the copyright owner’s exclusive rights, they are guilty of infringement.
If the infringer can prove they were not aware of the original work and created theirs independently they may not be guilty of copyright infringement.
Resolutions and solutions
When an artist or creative’s work is used without their permission, it can have a detrimental effect on them, their reputation and their legacy. If you own the copyright, you’re entitled to take the infringer to court for their illegal use of your rights. However, going to court is likely to be costly, time-consuming and stressful.
Try to resolve the infringement by settling out of court. This means you would come to an agreement with the other party, which may include a payment, without a lengthy legal process. One solution could be a retrospective licence that allows them to use your work in the way they already have.
If your work is being infringed or has been infringed, it’s advisable to get specialist legal advice to help you understand your options.
Free information and guidance on intellectual property
- articles on copyright law on the Artquest website
- guidance on defending copyright on the Intellectual Property Office website
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Disclaimer
The content of this article is not intended to be applied to individual circumstances. It is not legal advice, and is not a substitute for independent legal advice.