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NYC Office: (212) 683-2001 -
NYC Office: (212) 683-2001 -

Copyright Infringement In The U.S.
By Jeffrey E. Jacobson & Justin M. Jacobson

In instances when an owner of a protected work, such as a book, motion picture, or a song, believes another party is utilizing the same work in violation of the original owner’s rights, that party may institute a copyright infringement suit.  In order to bring a copyright infringement lawsuit in situations where an author believes that one of their copyrighted works has been infringed upon, most courts require that the work must first be registered with the U.S. Copyright Office prior to instituting a lawsuit (17 U.S.C. § 411(a)).   In general, copyright infringement is shown by the owner proving ownership of a valid copyright in the allegedly infringed work and showing an actionable copying by the infringing party of the work’s original and protectable elements.

The first element, ownership of work, is generally proven by the presentation of a validly issued copyright certificate from the U.S. Copyright Office.  The second element, the “copying” of a work, is typically proven either by direct or indirect evidence.  Since direct evidence showing proof of copying is rare, a copyright owner must instead rely on indirect evidence to prove that the infringing party had “access” to the allegedly infringed work as well as that there are “probative similarities” between the original work and the allegedly infringing work.  Access may be inferred when there are substantial similarities between the two works that are “so strikingly similar” as to prevent any reasonable possibility that each party independently created the works. 

If these two elements are proven by the work’s owner, then the copyright owner’s work may be found to have been infringed upon.  In such instances, the harmed party has a variety of remedies available to them.  They can obtain injunctive relief to prevent the continued infringement by the party, the seizure and impoundment of the infringing items as well as the recovery of any actual damages and lost profits suffered by the non-infringing party (17 U.S.C.  §§ 501, 503).  In addition, if the owner has filed for registration prior to the infringement or within three months of the original publication date of the work, the author may be entitled to recover actual damages incurred, statutory damages as well as attorney’s fees.   In some cases, the attorney’s fees recovered can even exceed the actual damages incurred by the copyright owner.  That is because of the legislative intent to encourage the protection of creative works. 

In addition to the direct copyright infringement described above, there are other types of copyright infringement.  These include contributory and vicarious infringement liability.  An individual or company who has knowledge of another’s infringing activity or induces or otherwise “materially contributes” to infringing conduct of another may be guilty of contributory liability for copyright infringement.  Further, an individual or company who has the “right and ability to supervise the infringing conduct [of others], and also [has] a direct financial interest in such activities” may be guilty of vicarious liability for the infringement of a third-party.

In an attempt to combat a claim of copyright infringement, there are a variety of available defenses.   Some of these defenses include that the allegedly infringing work was an independent creation of work by the allegedly infringing party; that the original work lacked originality or some other “unprotectable expression;” that the work is in the public domain and therefore unprotectable; that the work contains scenes a faire; or, that the infringing work is considered “fair use.”  A valid copyright registration certificate also helps a party defeat an allegedly infringing party’s defense of being an “innocent infringer” and can provide increased statutory damages for infringements found to be “willful.”

Scenes a faire is a concept that certain characters, places, story elements, language, ideas, scenes, themes, or clichés are standard to some general theme or topic that they become an indispensable part of that theme or topic; therefore, such scenes a faire elements are not capable of being protected by copyright. For example, a horror fiction story may have a masked murderer, blood, gore, axes, knives, and heroes fighting an adversary.  These elements could be considered all scenes a faire and not protectable by copyright.  However, the application and expression of these elements, such as the unique “Scream” mask worn by the villain in the motion picture, “Scream,” in a given story would be protectable as a unique creative expression.

Another possible significant defense to copyright infringement is that the secondary use by the allegedly infringing party is not an infringement at all; but, rather, it is a “fair use” of the copyrighted work.  The Copyright Act permits a third-party to make fair use of a copyrighted work “for purposes such as criticism, comment, news reporting, teaching, […] scholarship, or research” (17 U.S.C. §107).  The statute outlines four (non-exclusive factors) that a Court may look at for determining whether a use is a “fair use;” and, thus, it is not an infringement of a protected work.  Such factors include a determination as to the purpose and character of the third-party’s use; whether the third-party’s use is for commercial or solely educational purposes; the nature of the original copyrighted work; the amount and substantiality of what was taken in relation to copyrighted work as a whole; and, the effect of the third-party’s use on the potential market for or value of the copyrighted work (U.S.C. §107 (1)-(4)).  Courts also look as to whether the fair use is “transformative” or not, such as that the new work “alters the original with new expression, meaning or message” Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).

Overall, an individual or business who feels that another is unfairly utilizing their unique, protectable work has a variety of options, including filing a lawsuit for copyright infringement.  It is also important that a potential copyright infringement litigant is aware of the potential defenses that could defeat and potentially nullify any recovery.

This article is not intended as legal advice, as an attorney specializing in the field should be consulted.

© 2018 The Jacobson Firm, P.C.

About the author

Justin M. Jacobson, Esq. - Vice-President, The Jacobson Firm, P.C. - Attorney Specializing in Entertainment, Sports, Esports, Fashion and Art Law. In particular, The Jacobson Firm, P.C. handles Trademarks, Copyrights, Contracts, Estate Planning, Music Business and Brand Development on behalf of creative talent and lifestyle brands.

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Hire the Esport & Trademarks Law Firm in 2020 and get a world-class attorney handling a variety of entertainment and music law services as well as trademark monitoring, dilution, and trademark applications. We take cases in Los Angeles, San Diego, Las Vegas, Nashville, Austin, Houston, Washington D.C., Miami, St. Louis, Philadelphia, Dallas, Chicago, Seattle, Sacramento, Orange County, Hollywood, East LA, California, Cali, Texas, NYC, ATX, Detroit, San Francisco, London, Amsterdam, Berlin, Barcelona, Paris, the US, Ireland, and Great Britain.