Is a breach of a licencing agreement considering a breach of contract

Author : Fourton Associates | Published On : 08 Jun 2021

Most adults have signed a licencing agreement without even realising it. It could have been in the context of a business agreement to obtain permission to use someone else's intellectual property, or it could have been in a consumer setting involving software or online subscription services. You need an expert business litigation attorney NYC for the best guidance.

A licencing agreement is a contract between the owner of rights and the person who wants to use those rights that allows for specific uses of the material. In the context of a licencing agreement to use copyrighted material, if the party using the material violates the contract, another cause of action in the form of a copyright infringement claim may be available. The rules governing when a breach of a licencing agreement constitutes a breach of contract rather than a claim for copyright infringement can be complicated.

Determining contract breach Vs. Copyright infringement:

The owner must satisfy two elements to prove copyright infringement where there has been a breach of a licencing agreement or can take help from the best business lawyer NYC. To begin, the user must go beyond the scope of the licence. Second, the infringement must be based on an exclusive copyright right, such as the reproduction or distribution of a work.

  • Was the provision that was broken a covenant or a condition? Contractual terms that limit the scope of a licence are referred to as conditions, and violation of a condition is considered copyright infringement. All other contract terms are covenants, and they constitute a breach of contract.
  • The licence was exclusive or nonexclusive? If the licence was exclusive, a breach due to unlicensed use will almost certainly be considered a breach of contract. Unlicensed use may constitute copyright infringement where the licence was nonexclusive.
  • Is there a remedy for use outside the scope of the agreement in the agreement? If the licencing agreement states that a licensee must pay additional fees for use beyond the scope of the contract, a breach of the licencing contract on these grounds is generally considered a breach of contract rather than an infringement of copyright.

Benefits of contract breach versus copyright infringement actions:

When determining damages, it is critical to distinguish between the breach of contract and copyright infringement. In cases of copyright infringement, the owner may be able to recover actual damages for the loss. If the infringer's profits exceed the owner's actual damages, the owner may choose to seek the infringer's profits, which may or may not be recoverable as contractual damages.

Drafting Considerations:

When drafting a licencing agreement, it is critical to consult with counsel about the implications of a breach and how to maximise the copyright of owner rights protection. Similarly, if a licencing agreement has been breached, an experienced attorney can advise you on which type of action to pursue based on the terms of the contract or how to best defend against an action. One must also take the considerations of employment agreement with the help of employment lawyers NYC.