What If I Don’t Charge?

One of the most common questions related to intellectual property is, “If I don’t charge for (some infringing use like copying characters or whatever) it’s okay, right?”

No, it is not okay.

Here’s an easy way to think about whether giving things away is going to help you when you’re using somebody else’s intellectual property:

Mostly, whether or not you made any money is relevant to calculating damages* and if you’re calculating damages it means YOU’VE ALREADY LOST THE CASE. So just ask yourself: “Do I want to be on the losing side of a case filed by a multbillion-dollar company?” Then proceed accordingly.

*It can be relevant to a Fair Use defense, but again, that’s a defense. If you’re using a defense, it means you have already conceded that your use was, absent the defense, infringing. That’s not a good place to be when, again, your opponent may be a multibillion-dollar company which spends more every year on coffee for lawyers than you’ll make in your whole life.

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