Copyright Infringement in Florida

Copyright Infringement in Florida

Miami – known for its lively music scene, dance community, street art and as home to Art Basel – has earned its reputation as an artist’s city.  Artists face unique challenges to protect their work in the Internet age, when online sharing has never been easier (or more profitable) and artificial intelligence has become a tool to infringe.  The purpose of copyright law is to protect original works of authorship from a third party using your work without your permission.  Unlawful use of your copyrighted work constitutes copyright infringement, and you can bring a lawsuit to enforce your rights and recover damages from the infringer.

people walking in the street near building

What are the requirements for copyright protection?

Under the U.S. Copyright Act, copyright is a form of intellectual property that applies to original works of authorship that are fixed in a tangible medium.  There are three basic requirements for copyright protection to attach: the product must be a work of authorship; it must be original; and it must be fixed in a tangible medium of expression.

  1. Work of Authorship

The owner of the copyright is typically the author or creator of the work.  However, the work-made-for-hire doctrine provides an exception for certain employer-relationships, where the creator of the work will not own the copyright to that work, if:

  • The work was prepared by an employee within the scope of employment; or
  • The work was specially ordered or commissioned, provided however, that the work falls into one of nine categories of works listed in Section 101 of the Copyright Act and the parties expressly agree in a signed written agreement that the work is considered a work-made-for-hire.

Another exception to the simple rule occurs when multiple people collaborate to create the work, creating what the Copyright Act refers to as a “joint work.”  Collaborating parties should take care to protect their ownership rights in a joint work.

  1. Originality

To be original, a work of authorship must merely be independently created.  There is no requirement that the work be novel (as in patent law), unique, imaginative or inventive.  A work need only demonstrate a very small amount of creativity in order to meet the originality requirement.  

  1. Fixation

The work must also be fixed in a tangible medium, meaning written down or recorded.  A work is considered fixed in a tangible medium when, under the authority of the author, “it is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated.”  For example, a literary work is “fixed” when it is written down.  Music is “fixed” when its musical composition and lyrics are written down, or when the instrumental and vocal performances are recorded.  Choreography is “fixed” when it is written in notation or recorded.


Copyright registration

A work automatically receives copyright protection upon being fixed in a tangible form – no registration is required.  However, there are a variety of benefits to registering a copyright with the U.S. Copyright Office, including the ability to sue for infringement of the work and to obtain statutory damages and attorneys’ fees.  Copyright registration also serves as evidence of the validity of the copyright, which, as discussed below, is necessary in an infringement action.


Exclusive rights under copyright law

If you meet the requirements for copyright, federal law grants you the exclusive legal right to reproduce, distribute, perform or display the work publicly, create derivative works and transfer any of these rights under the Copyright Act.  You can also enforce your rights against unauthorized users or infringers.


How can a party prove copyright infringement?

In order to prove infringement in court, the plaintiff must show that they are either the owner of a valid copyright in the work or that they have the legal authority to bring a lawsuit, and that the defendant actually copied the copyrighted work.

A copyright registration is evidence of ownership.  Courts have held that registration before, or within five years of publication of a work, establishes a presumption of ownership that then shifts the burden of proof of ownership to any party who is challenging said ownership.

Proof that the defendant copied the work typically involves showing that the defendant had access to the plaintiff’s work and that the defendant’s material is substantially similar to the copyrighted work.


Are there defences against a copyright infringement claim?

While there are several defenses to copyright infringement, it is not a defense that the defendant did not intentionally infringe.  Including a disclaimer that you are not intentionally infringing or otherwise acknowledging that you do not own the copyright will not mitigate your liability.  If the author can prove that the infringer willfully infringed, then the author may be entitled to enhanced statutory damages.

The fair use defense is written into the Copyright Act and allows a party to use copyrighted material for certain purposes deemed beneficial to the public interest, such as criticism, news reporting, teaching and research. 

The principle of scènes à faire may also be a defense.  This defense arises when certain elements of your work are customary to the genre and, as with a general idea, are not protectable under copyright law.  Examples of scènes à faire include a spy novel that might employ stereotypical character types, a Western film that includes a cowboy and an outlaw or other commonly used scenarios.


What remedies are available in copyright infringement?

You may sue an infringer in federal court for actual damages you suffered, including any profits the infringer made, or recover statutory damages.  Reasonable attorneys’ fees and costs are also available if you prevail in litigation.  You can also obtain an injunction against an infringer ordering him or her to cease infringing as well as seize infringing goods.



If you believe your work has been infringed, reach out to our team of attorneys for advice on enforcing your rights.

Anyone who wishes to copy material from another party or who is concerned they may be infringing should seek permission from the copyright owner and a license to use the work. Consult with a Florida intellectual property clearance attorney to ensure you do not violate copyright law and that you comply with the terms and conditions of any licensing agreement.

Romano Law can provide guidance on copyright infringement in New York, California and Florida.



 Photo by Pili Gonzalez Prieto on Unsplash


Looking for other IP services?