Many people throw around the term “copyright infringement” without fully understanding the legal elements of a copyright infringement claim. Given the ease at which modern day media can be copied, especially over the internet, every person and business should have a clear understanding of copyright infringement so that they can protect themselves and their intellectual property.
When Infringement Occurs
When a copyright attaches, the copyright holder obtains five exclusive rights. Those rights are:
1) The exclusive right to reproduce the copyrighted work;
2) The exclusive right to prepare derivative works based upon the copyrighted work;
3) The exclusive right to distribute the copyrighted work to the public;
4) The exclusive right to perform the copyrighted work publically; and
5) The exclusive right to display the copyrighted work publically.
Copyright infringement occurs when someone other than the copyright holder violates one of the five exclusive rights listed above. For example, if you write a book and someone else makes copies of that book, they have violated your exclusive right to reproduce your work. This is copyright infringement. In addition, if somebody makes a movie based upon your book without your permission, this probably violates your right to prepare derivative works based upon your book. This is also likely copyright infringement.
Proving Infringement: The Elements
The easiest way to prove copyright infringement is to show direct evidence of copying. However, one can also prove copyright infringement by showing that the infringer had access to the work and there is a similarity between the work and the infringing work. For example, if an infringer had access to your website where you posted a painting and then created a very similar painting at a later point in time, you probably have a claim for copyright infringement against that person. Whether copying is shown by direct evidence or by access and similarly, the infringing work must rise to the level of improper appropriation. Essentially, this means that the infringing work must be “substantially similar” to your copyrighted work. Taking small portions of a work, or somehow transforming the work into something new, may not rise to the level of copyright infringement, although this must be determined on a case-by-case basis.
Important Considerations
An important note – before any copyright holder can sue for copyright infringement, he or she must register the work with the U.S. Copyright Office. A suit cannot be brought unless the work is registered. There are other significant benefits to a copyright registration, including statutory damages of up to $150,000 per work, depending upon the circumstances, and attorneys’ fees. However, these remedies are only available if the work is registered within the first three months of publication, or before any infringement occurs. If registration is not made in that window, you must rely on actual damages, which may be much smaller, and attorneys’ fees typically cannot be recovered.
If you are interested in protecting your work through copyright registration, interested in pursuing a claim for copyright infringement, or have received a cease and desist letter from an alleged copyright holder, contact one of our attorneys for assistance.
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