What Can You Do If Someone Copies Your Work Without Permission?

Understanding copyright infringement

It can be frustrating, and sometimes financially damaging, to discover that someone has copied your work without permission. Whether it is a photograph, artwork, illustration, design, written content, video, music, website content, marketing material or other copyright-protected work, many creators are left wondering the same thing: what can I actually do about it?

The good news is that Australian copyright law provides a range of remedies for copyright owners. Depending on the circumstances, you may be able to stop the infringement, negotiate a licence fee, recover damages and, in some cases, obtain additional damages designed to punish particularly serious conduct.

Understanding how these remedies work can help copyright owners make informed decisions about whether to pursue a claim and how to approach settlement discussions.

What rights does copyright protect?

Copyright protects many different types of creative works under the Copyright Act 1968 (Cth), including:

• photographs;
• artistic works;
• drawings and illustrations;
• literary works, such as articles, books and website content;
• software code;
• music and sound recordings;
• films and videos; and
• certain other creative materials.

Unlike trade marks, copyright generally arises automatically when an eligible work is created. There is no registration system for copyright in Australia.

If another person reproduces, publishes, communicates or otherwise uses a substantial part of a copyright work without permission, they may be infringing copyright.

What remedies are available?

Where copyright infringement has occurred, a court may grant a range of remedies.

These can include injunctions requiring the infringer to stop using the work, orders for delivery up or destruction of infringing materials, compensatory damages, an account of profits and, in appropriate cases, additional damages.

In many commercial disputes, the focus is on damages. The question becomes: how much should the copyright owner receive to compensate them for the unauthorised use?

The importance of the “user principle”

One of the most important concepts in modern copyright damages cases is what lawyers often call the “user principle”.

The principle is relatively straightforward. Rather than asking whether the copyright owner can prove they lost a specific customer or sale, the court asks a different question:

What would a reasonable person have paid to obtain permission to use the work?

The court effectively assumes that the infringer had approached the copyright owner and negotiated a licence before using the work. It then determines what a fair licence fee would have been in that hypothetical negotiation.

This approach is particularly useful because copyright owners are not always able to prove direct financial loss. A photographer may not be able to show that they lost a particular licensing opportunity. An artist may not be able to identify a lost sale. A writer may struggle to prove exactly how much revenue was affected.

The user principle allows the court to recognise that the unauthorised use itself has value.

What have the courts said?

Australian courts have increasingly recognised the user principle when assessing damages for intellectual property infringement.

One of the most significant decisions is Winnebago Industries Inc v Knott Investments Pty Ltd (No 4) (2015) 241 FCR 271.

Although the case involved trade mark rights rather than copyright, the Full Federal Court confirmed that Australian courts may award damages based on a reasonable user fee or hypothetical licence fee. The decision helped establish that damages are not confined to traditional calculations of lost profits.

The principle was applied in a copyright context in Universal Music Publishing Pty Ltd v Palmer (No 2) [2021] FCA 434.

In that case, Clive Palmer used a modified version of the well-known song “We’re Not Gonna Take It” in a political advertising campaign without obtaining a licence. The Federal Court assessed damages by reference to what a reasonable licence fee would have been for the use that actually occurred. Significantly, the Court recognised that damages could be awarded even though the copyright owner would not necessarily have granted a licence on those exact terms.

The case also demonstrates that substantial additional damages may be awarded where infringement is deliberate and commercially significant.

When can additional damages be awarded?

Not every copyright infringement case involves additional damages.

However, section 115(4) of the Copyright Act 1968 (Cth) allows a court to award additional damages where circumstances justify it.

Factors that may be relevant include:

• whether the infringement was deliberate;
• whether the infringer knew copyright existed;
• whether they continued infringing after receiving a complaint;
• the need to deter similar conduct; and
• the commercial benefit obtained from the infringement.

A useful example is Tylor v Sevin [2012] FCCA 445.

The case involved the unauthorised online use of a photograph. The Court awarded compensatory damages based on the value of the licence that should have been obtained. However, it also awarded substantial additional damages after considering the respondent’s conduct, including failures to promptly address the infringement.

The decision serves as a reminder that ignoring complaints or continuing to use material after notice can significantly increase legal exposure.

Why settlement often makes commercial sense

Although copyright owners may have strong legal rights, litigation is not always the best commercial outcome.

Court proceedings can be costly, time-consuming and uncertain. Even where infringement is clear, parties often disagree about the value of a hypothetical licence fee or whether additional damages should be awarded.

As a result, many disputes resolve through negotiated settlements.

A well-prepared settlement position typically considers:

• the value of the copyright work;
• the nature and duration of the use;
• the commercial significance of the infringement;
• any evidence of deliberate conduct; and
• the likely cost and risk of litigation.

In many cases, a carefully negotiated outcome can achieve a practical result without the expense of a trial.

Final thoughts

Discovering that someone has copied your work can be upsetting, particularly where significant time, creativity and expertise have gone into producing it.

However, Australian copyright law provides meaningful remedies. Courts are increasingly willing to recognise the real-world value of creative works by assessing damages through the user principle, while also awarding additional damages where conduct warrants a stronger response.

Whether the work is a photograph, artwork, article, software program, video, musical composition or other copyright material, the key question is often not simply whether infringement occurred, but what a reasonable licence for that use would have been worth.

For creators, understanding this principle can be an important first step in protecting and enforcing valuable intellectual property rights.

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Did You Know? Copyright Quick Facts

1. Copyright is automatic in Australia

You generally do not need to register copyright for photographs, articles, artwork, videos, music or other original works.

2. You do not always have to prove lost sales

Courts can award damages based on what a reasonable licence fee would have been, even if you cannot show you lost a specific customer.

3. Online infringement still counts

Using a copyright work on a website, social media page or digital advertisement can amount to infringement just as much as using it in print.

4. Deliberate infringement can be expensive

Australian courts may award additional damages under section 115(4) of the Copyright Act 1968 (Cth) where conduct is flagrant or continues after complaints are made.

5. Copyright protects more than photographs

Articles, blogs, software code, videos, illustrations, graphic designs, marketing materials, music and many other creative works may also be protected.

6. Giving credit is not always enough

Simply acknowledging the creator does not automatically give permission to reproduce or use a copyright work.

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Please note the above article is general in nature and does not constitute legal advice.

Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.