Infringement

Copyright infringement

The owner of a copyright has the exclusive right to do and to authorize any of the following:

  • to reproduce the copyrighted work in copies or phonorecords;
  • to prepare derivative works based upon the copyrighted work;
  • to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease or lending.

    Anyone who violates any of these exclusive rights of the copyright owner is considered an “infringer” of the copyright as well as an “infringer” of the rights of the author.

    In order to prevail on a claim for copyright infringement, a Plaintiff must initially show that an application has been filed, and either factual evidence of copying or that the defendant had access to the copyrighted work and that the offending and copyrighted works are so similar, that the Court may infer that there was factual copying1. A Plaintiff need only then prove that the works are “substantially” similar.

    1. Lotus Development Corp. v. Borland Intern, Inc., 49 F.3rd 807 (1st Cir. 1995) citing Engineering Dynamics, Inc. v Structural Software, Inc. , 26 F.3rd 1335, 1340 (5th Cir. 1994).