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Copyright Infringement

What is copyright infringement?

Copyright infringement occurs when a third party violates one or more of a copyright owner’s exclusive rights:

  • To reproduce the work in copies or phonorecords.
  • To prepare derivative works based upon the work.
  • To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending.
  • To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works.
  • To display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work.
  • In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.

Copyright infringement may also occur where a party exceeds the grant of rights that the copyright owner has given them.

How is infringement proven?

To prove copyright Infringement, a copyright holder must demonstrate the following:

  • Ownership of a valid copyright. Ownership of a valid copyright consists of: (1) originality in the author; (2) copyrightability of the subject matter; (3) a national point of attachment of the work, such as to permit a claim of copyright; (4) compliance with applicable statutory formalities; and (5) if the plaintiff is not the author, a transfer of rights or other relationship between the author and the plaintiff so as to constitute the plaintiff as the valid copyright claimant.” A registration certificate from the Copyright Office serves as prima facie evidence of elements (1) through (4).
  • Copying by the defendant. This element requires proof of actual copying of the plaintiff’s work by the defendant such that the copying constitutes an improper appropriation of the plaintiff’s work. Copying can be proven by direct evidence or, more commonly, through circumstantial evidence establishing (1) access to the plaintiff’s work and (2) “probative similarity” (a level of similarity between the two works that, given the defendant’s access, makes it more likely than not that the defendant copied the work).

What remedies are available to a copyright owner?

Under the Copyright Act, courts may grant temporary and final injunctions to prevent or restrain copyright infringement. Courts may also order the impounding and disposition of infringing articles. A copyright owner is also entitled to his or her actual damages and any additional profits of the infringer, or alternatively, to statutory damages. In certain cases, a copyright owner may also be entitled to additional damages and to costs and attorneys’ fees.