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AttorneyTom
AttorneyTom, Attorney
Category: Intellectual Property Law
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Our site unintentionally used an article that was, we recently

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Our site unintentionally used an article that was, we recently found out, apparently somehow copied from another website. The owner of that site (who is himself an attorney) sent a cease-and-desist letter, and of course we complied. He later sent a threat of legal complaint, and proof that his website has registered copyright -- but for the entire website, not the particular article. The article that was until recently on our server was a page and a half of text excerpted from that website which itself has dozens if not hundreds of pages in its entirety.

My question is, to what degree does that copyright for the material as a whole apply to an excerpt of that material? We're not contesting whether the copyright applies; I just want to understand how the copyright applies to just a part of the copyrighted material.
Submitted: 5 years ago.
Category: Intellectual Property Law
Expert:  AttorneyTom replied 5 years ago.
Hello. Thank you for coming to JustAnswer. I am Thoreau and I am sending this answer to you only a few minutes after you asked your question.
I'm sorry to hear about the situation. A copyright applies to the entire body of work as well as each portion within it. Using a substantial portion of another person's copyrighted work can constitute infringement. However, there is a doctrine called "fair use" that allows reasonable use of a portion of an individual's copyrighted work, and that could potentially provide a defense if you are sued, depending on the extent and nature of the use. To quote the US Copyright Office: "Under the fair use doctrine of the U.S. copyright statute, it is permissible to use limited portions of a work including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports. There are no legal rules permitting the use of a specific number of words, a certain number of musical notes, or percentage of a work. Whether a particular use qualifies as fair use depends on all the circumstances. See FL 102, Fair Use, and Circular 21, Reproductions of Copyrighted Works by Educators and Librarians." http://www.copyright.gov/help/faq/faq-fairuse.html.
Again, I am sorry to hear about the situation and I hope that it can be resolved without further incident. Please remember that my job here is to provide accurate information about the law. Providing bad news is the hardest part of doing my job but it's a big part of doing my job well. If you feel that the law is wrong or unfair, I'd strongly encourage you to contact your legislators, as they are the only ones who can change it.
Customer: replied 5 years ago.
So just to clarify your answer: I am aware of Fair Use, and it might apply here. But let's assume it doesn't. Can we expect to be assessed damages for using a small portion of the website the same as if we had reproduced the copyrighted website entirely?
Expert:  AttorneyTom replied 5 years ago.
Thank you for your message. This is governed by 17 USC 504. At the copyright owner's discretion, he can elect either statutory damages or actual damages. Depending on the work, misusing a smaller portion of the work would generally yield lesser actual damages and, because statutory damages are discretionary for the court, it would generally reduce the award of statutory damages as well. Unfortunately, statutory damages range from $750 to $30,000, based on what the court feels is fair. However, the court can increase the cap to $150,000 if the infringement was committed willfully (the copyright owner has the burden of proving that). If the infringer can show that he wasn't aware of the infringement and had no reason to believe he was infringing, the court can reduce the minimum fine to $200.
I'm sorry that you're having to go through that and I hope that the matter resolves without incident and as painlessly as possible. Please remember that my job here is to provide accurate information about the law. Providing bad news is the hardest part of doing my job but it's a big part of doing my job well. If you feel that the law is wrong or unfair, I'd strongly encourage you to contact your legislators, as they are the only ones who can change it.
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