Copyright Infringement

Copyright Infringement

Copyright law recognizes that those who create original works have the right to protect these works from exploitation by others, who use them without permission. As a result, unauthorized users of copyrighted material are subject to significant liability. However, not all works are subject to copyright protection and there are many defenses to copyright infringement.

What Are the Requirements for Copyright Protection?

Copyright is a form of intellectual property that applies to original works of authorship that are fixed in a tangible medium. Under the U.S. Copyright Act, an original work is one that is independently created by an individual and involves at least some degree of originality. 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 music and lyrics are written down, or when the song is recorded. Typical works include literary, musical, and dramatic works, motion pictures, and sound recordings. Works that appear solely online are also included.


Copyright Registration

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

Work for Hire Doctrine

The owner of the work is typically the author or creator of the work.  However, an exception to this is the work-for-hire doctrine, which provides that the creator does not own the copyright to a work when certain requirements are met.

Under Section 101 of the Copyright Act a work made for hire is either:

  • a work prepared by an employee within the scope of employment, or
  • a work specially ordered or commissioned, provided however, that the work falls into one of nine types of works listed in the statute and the parties expressly agree in a written instrument signed by them that the work is considered a work made for hire.
Works That Are Not Eligible for Copyright Protection

Copyrights only protect original expressions of ideas and information.  As a result, techniques, facts, concepts, or ideas alone cannot be copyrighted.  However, ideas may be protected under contract law.  These lawsuits often arise in the entertainment and technology industries but can be challenging to prove.

In addition, titles, names, short phrases, and slogans are also not eligible for copyright protection but may be enforceable under trademark law.  Works that compile information that is commonly available and contain no originality are also not copyrightable.

Exclusive Rights Granted Under Copyright Law

Copyright grants the creator an exclusive legal right to determine when and under what conditions an original work can be used by others. The copyright owner has the following rights:

  • the right to reproduce the work
  • the right to prepare derivative works
  • the right to distribute copies of the work to the public
  • the right to perform the copyrighted work publicly
  • the right to display the copyrighted work publicly

How Can a Party Prove Copyright Infringement?

An individual who uses copyrighted material without permission may have committed copyright infringement. In order to prove infringement in court, the plaintiff must show that he or she is the owner of a valid copyright in the work or has 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 Defenses Against a Copyright Infringement Claim?

There are several common defenses available in copyright infringement.  Fair use is the most commonly used.  The fair use doctrine allows a party to use copyrighted material for certain purposes deemed beneficial to the public interest, such as criticism, news reporting, teaching, and research.  Courts weigh the following four factors in determining whether a use constitutes fair use:

  • The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
  • The nature of the copyrighted work;
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • The effect of the use upon the potential market for or value of the copyrighted work.

Another defense is that the defendant independently created the work and did not copy it.  This may be difficult to prove where the works are very similar.

The principle of scène à faire may also be a defense.  It is used when certain elements of a work are customary to the genre of the work and as a result not protectable.  An example of this is a spy novel that might employ stereotypical character types or commonly used scenarios.

What Remedies Are Available in Copyright Infringement?

A copyright owner is entitled to recover either their actual damages, including any profits the infringer made, or statutory damages.  Statutory damages are between $750 to $30,000 per infringed upon work, unless the copyright owner can show that infringement was committed willfully.  In instances of willful infringement, the owner can be awarded up to $150,000 per work.  Willful infringement may be shown with evidence that the infringer removed a copyright notice when publishing the copyrighted work or failed to remove or retract the content after being notified that it was infringing.

Note that the copyright owner may also be awarded their reasonable attorney’s fees if they prevail in litigation.

Equitable Remedies

A court can also issue an injunction against an infringer ordering him or her to cease infringing as well as seize infringing goods.


The internet has made copyright infringement more prevalent and easier to identify.  Owners should protect their interests by registering their works with the U.S Copyright Office and diligently enforce their rights.  Those who use copyrighted material must ensure they have proper permission to avoid liability.  Consult an experienced intellectual property attorney for assistance with copyright matters.

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


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