When photographers are infringed, they have the option of filing a lawsuit to recover damages directly from or an injunction against the infringer. But sometimes photographers want the infringer to be criminally prosecuted. What’s the difference?
“Civil” cases are when persons or organizations, such as a photographer, files a lawsuit directly against an alleged infringer, who also is a person or organization. “Criminal” cases are when a state or the federal government files suit against a person or organization for an action that is considered to be harmful to society as a whole. Sometimes, both criminal and civil suits can be files for the same alleged act. For example, the State of California unsuccessfully prosecuted O.J. Simpson for murder. Later, the families of Nicole Brown Simpson and Ronald Goldman successfully sued O.J. Simpson in a civil lawsuit for wrongful death of their family members. While both criminal and civil defendants can be ordered to pay monetary damages, only criminal defendants can be incarcerated if found guilty.
So it makes sense that infringers should be concerned about both criminal and civil liability. But not every infringement is a criminal offense. Throughout the history of copyright in the United States, criminal copyright penalties have been the exception rather than the rule. Although criminal copyright law has greatly expanded the scope of the conduct it penalizes over the past century, criminal sanctions continue to apply only to certain types of infringement.
The Copyright Act specifically discusses criminal copyright infringement at 17 U.S.C. § 506. Specifically, copyright infringement is a crime if the defendant infringed willfully and did so either:
(A) for purposes of commercial advantage or private financial gain;
(B) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000; or
(C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.
Similar to civil violations of 17 USC 1201, the Copyright Act states that it is a crime for:
(c) Fraudulent Copyright Notice. — Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500.
(d) Fraudulent Removal of Copyright Notice. — Any person who, with fraudulent intent, removes or alters any notice of copyright appearing on a copy of a copyrighted work shall be fined not more than $2,500.
Criminal copyright infringement is punishable in a variety of ways, depending on the infringing act. 18 U.S.C. § 2319.
The U.S. Department of Justice has a manual for United States Attorneys on “Prosecuting Intellectual Property Crimes.” Several sections are helpful to understand copyright law as a whole. While most infringements of photographers works won’t lead to criminal prosecution, photographers can protect their copyrights in many other ways.
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