Copyright Lawsuits

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Copyright lawsuits are nearly always battles over whether someone has infringed a work.

What is Infringement?

Copyright infringement refers to the unauthorized use of a copyrighted work. Infringement occurs when a party with access to a work has copied it or interfered with a right granted under copyright law. For example, infringement may occur when someone copies several chapters of a book or performs a copyrighted song without authorization of the owner.

How Do You Prove Infringement?

There are two steps in proving infringement. First, the person claiming infringement must prove ownership and validity of the copyright. Second, the copyright owner must demonstrate that the defendant violated one of the exclusive rights. For example, if a photographer claims that his photo was infringed to make postcards, the photographer must show that:

  • he owns a valid copyright in the nature photo; and
  • the photo was copied to make the postcards.

How Do You Prove Copying?

Copying does not have to be an exact duplication to qualify as an infringement. In the example of the photographer, copying would be proven by introducing evidence that the postcard owner had access to the copyrighted photo and that the postcard is substantially similar.

Access

Access refers to the reasonable opportunity of the defendant to view or hear the copyrighted work. Often, if the infringement involves identical copies, access will be presumed.

Substantial Similarity

Substantial similarity occurs when two works have similarities that can only result from copying, rather than from coincidence, common source derivation, or independent creation. Some similarities may be literal. For example, if several chapters of a textbook were photocopied for sale to students, that would be a literal or verbatim form of copying. Other similarities – in which elements are copied or altered -- are considered comprehensive or non literal similarities. The greater the quality and the quantity of such similarities, the greater the likelihood of substantial similarity.

Defenses to Infringement

A person accused of infringement has a range of defenses to choose from. (By the way, the intent of the person performing the infringing acts is irrelevant for determining whether an infringement occurred, although it may affect damages. See this article for more information.)

Challenging Ownership

The defendant (infringer) can challenge the claim of ownership or validity of the copyright. The most common reasons to attack ownership are:

  • The work is not original to the author;
  • The work is not copyrightable;
  • The owner has failed to comply with statutory formalities; or
  • The plaintiff is not the author and has failed to prove the relationship demonstrating a transfer of rights.

Attacking Substantial Similarity

It is important to remember that not all similarities give rise to an infringement claim. For example, similarities based upon short phrases, facts, public domain material, and ideas would not prove substantial similarity. The following is a list of unprotectible elements.

  • short phrases and standard designs
  • ideas and methods
  • standard forms and measurements          
  • facts and public domain elements

Fair use

Fair use is the right to use copyrighted material for limited purposes and without authorization of the author. Whether fair use defense is applicable is determined by a federal court after weighing several factors including: purpose and character of the use, amount and substantiality of portion borrowed, and effect of the use on the market for the copyrighted material.

As explained in this article, fair use is the right to use copyrighted material for limited purposes and without authorization of the author. Whether a fair use defense is applicable is determined by a federal court after weighing several factors including: purpose and character of the use, amount and substantiality of portion borrowed, and effect of the use on the market for the copyrighted material.

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