Transcript Infringement Claims and Defenses

Infringement Claims and
Defenses
Professor Todd Bruno
Elements of Infringement
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Ownership of Copyright
Copying or invading one of the exclusive
rights of copyright owners
How to prove ownership?
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Author
certificate of copyright registration is
prima facie evidence
transfer
Copying:
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substantial similarity between his work
and that of defendant – some map
makers include fictitious entries. Lay
observer or ordinary observer test.
Depends on audience.
access to copyrighted work – can be
inferred if work is widely disseminated; if
2 works are clearly identical, it may be
presumed.
Innocent Infringement is NOT a
defense
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A gets book from B that C actually wrote;
A copies it…this is infringement even
though he does not know it or intended to
infringe
May be subconscious (remember George
Harrison)
Most Common Defenses
1. Copyright invalidity can include :
 the work was not original, lacked copyrightable
subject matter (common facts or just “sweat of
the brow”)
 P is not the owner of the copyright.
 Contents of the work are in the public domain.
 Copyright was not properly registered and thus
the court lacks jurisdiction to hear the case so
the claim is not proper
Most Common Defenses
2. Independent creation is a complete
defense to copyright infringement
although it is sometimes difficult for
a D to prove independent creation.
Most Common Defenses
3. Admission of copying but…..
 “De minimis” use is a defense that admits
copying but claims that the amount taken
is so small that it makes no difference. It
is often coupled with a fair use defense.
 Similar to de minimis is a defense that
what was copied was not protectable,
such as copying just the facts from a work
and not protected expression.
Most Common Defenses
4. Fair use - In determining whether the use made of a
work in any particular case is a fair use the factors to be
considered shall include-(1) the purpose and character of the use, including
whether such use is of a commercial nature or is for
nonprofit educational purposes;
(2) the nature of the copyrighted work (fact or fiction?);
(3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole (“essence”
of the work); and
(4) the effect of the use upon the potential market for or
value of the copyrighted work (most important).
Other defenses
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The copyright may be expired, or the holder
may have forfeited his or her rights in the work
The statute of limitations may have run (three
years for civil infringement and five years for
criminal infringement).
The copyright owner may have granted
permission to use the work or licensed its use
Bad Defenses – Innocent Intent
(might affect damages)
A.
Unconscious plagiarism, i.e., copying from P but
later forgetting the source, is innocent, but it is
nonetheless infringement.
B. Another example of innocent intent is where D relies
on the work of a third party and the third party copied
from P. Again, D is not relieved of liability.
C. D may consciously copy from P's work believing in
good faith that this conduct does not constitute an
infringement of copyright. Such innocence will not
preclude a determination of liability.
D. Remember that claims of innocent infringement are
cut off if the work contains a notice of copyright.
Remedies
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Reasonable temporary and final injunctions, as
appropriate, to prevent or restrain infringement
of a copyright.
While court actions are pending, the court may
impound any copies of the copyrighted work
that have been claimed to have been made or
used in the infringement.
If infringement is proven, the court may order
destruction of any copies of the copyrighted
work that have been claimed to have been made
or used in the infringement.
Remedies
The copyright infringer is liable for
 the copyright owner's actual damages and any additional profits of
the infringer, or statutory damages.
 Attorney's fees may be awarded by a court to whichever
party wins.
Statutory damages and attorney's fees cannot be awarded if, at the
time of the infringement,
 the work is unpublished
 the work is published, but not yet registered with the copyright
office. (The only exception to this is if the infringement occurs right
after the work is first published and the work is subsequently
registered with the copyright office within three months of first
being published.)
Remedies
Infringement in some circumstances where
the infringer makes a profit may be a
criminal offense. The copyright statute of
limitations is 5 years for criminal offenses
and three years for civil claims.