A registered copyright provides you with exclusive rights over your intellectual property. You are the only person legally permitted to display, copy and distribute your material. Your exclusive rights also include permission to perform or transmit your works publicly and the preparation or creation of derivative works based on your original material. Without a copyright transfer, approval, authorization or specific allowable exceptions, no one else has these rights. Copyright infringement is the violation of one or more of these rights by a third party.
What is Copyright Infringement?
In a simplified version of copyright infringement, you create and register your copyrighted material right away – written material, for example. You publish the material, so that it’s widely accessible. Others may read your work, but they may not reproduce it without your authorization. If you discover that someone is reproducing your work without your permission, it is likely that is an act of copyright infringement.
If a party impermissibly copies the work of a copyright holder‚ the copyright holder should either request that the infringer cease and desist from any further exploitation of the work‚ or initiate copyright litigation in federal court. When a copyright infringement occurs on a registered copyright‚ the availability of statutory damages and attorneys’ fees may lead a plaintiff to initiate action by filing a lawsuit. You may see more information about copyright litigation on our Copyright Litigation page. You may also see our intellectual property litigation page which includes some of our past litigation results.
Copyright Infringement Determination
In all cases of copyright infringement, the party claiming ownership of the material must prove they own a copyright to it. It’s also essential that the copyright predates the infringement. Prompt registration of your copyright with the U.S. Copyright office can provide these proofs.
The difficult part of a copyright infringement claim may be proving that your work was copied. Accused infringers often deny copying someone else’s work. Instead, they claim coincidence in both parties developing similar creative products.
Copyright infringement occurs when a plaintiff can prove:
- ownership of a valid copyright; and
- unauthorized copying by the defendant of original elements of the work.
The key inquiry in a matter of copyright infringement is often whether substantial similarity exists between the works at issue. Generally‚ a work will be considered to be substantially similar if the overall look and feel is the same from the viewpoint of an average observer. To prove infringement‚ a party must provide either direct evidence that the defendant copied the work or indirect evidence of copying by proving that the defendant had access to the work.
In a legal action, the courts typically assess three main factors to help make the final determination. In effect, it’s a circumstantial evidence test.
Here, you need to overcome the coincidental creation argument. Did the copyright infringer have access to your work prior to the alleged infringement? If your material was publicly available, this may be relatively easy to prove. With lesser-known works, access may be more difficult to substantiate. You’ll need to show how the infringer would have been exposed to your work prior to infringement.
In this element, you must demonstrate that your property was copied and show that what was copied was protected material. Usually, the courts look at access and similarity to determine copying.
This is the issue that probably gets the most attention in claims of copyright infringement. In many copyright infringement cases, the infringer doesn’t outright copy an entire piece of work. Instead, they appropriate elements of someone else’s work. The argument is whether those elements are protected by copyright law and whether the similarities are sufficiently significant. This determination is a subjective one, as there are no uniform rules for deciding whether two texts, images or songs are substantially similar. However, proving substantial similarity is a requirement for a successful infringement claim.
Types of Infringement – Copyright Infringement Attorneys
Copyright law protects a wide range of creative works. So, it stands to reason that there are numerous infringement methods and behaviors. Come common types of copyright infringement include:
When someone passes off your words as their own, they’re plagiarizing your work. If that work is copyright protected, it’s also an act of copyright infringement. This is happening with increasing frequency with internet news stories, blogs, images, and other web content.
Incorporating copyrighted words, photographs, melodies, computer code or other works into a new creation is the preparation of derivative works. Doing so without permission is likely copyright infringement. Fanfiction, translations, film sequels and music remixes are examples of this.
The theft and reproduction of someone’s copyrighted work to sell for profit is often referred to as piracy which is just another type of copyright infringement. Common targets for this practice include software, books, music and movies.
File Sharing and Torrent websites
File sharing and unauthorized downloads and uploads via torrent websites are some of the many ways that people engage in copyright infringement online. One popular example is making copyrighted music and videos available for others to download and share without permission.
Many people mistakenly believe that copyright infringement only applies when use of the material is public or is motivated by profit. But the law explicitly prohibits the reproduction and distribution of the work without the copyright owner’s permission.
Bear in mind, that in copyright law, some exceptions apply to the exclusive rights of the holder of a copyright.
Though you own your copyrighted works, you can give permission for use to specified individuals. When they obtain a license for use, infringement is not an issue. In fact, as a copyright owner, you may want to encourage this approved use to earn financial profit. Licensees must ensure they’ve taken the necessary steps to avoid copyright infringement.
Understand that there is a big difference between assigning your copyright to another party and providing someone with a copyright license to use it. When you assign your copyrights, you give them up entirely, and you no longer possess the exclusive rights of a copyright. But when you grant a license, you essentially share some of your rights. You still own the copyright, but your licensee has your authorization to copy, distribute and perform your work under the terms of the copyright license.
Legislation Concerning Copyright Infringement
In the age of the Internet, copyright law is in a constant state of playing catch-up regarding technological advancements. At times these laws can be dated within a few years of being enacted. Some laws in this area include:
No Electronic Theft (NET) Act: This 1997 law was passed to help prosecute electronic copyright violations. Violators who copy, share or distribute software, games, movies, music and other intellectual property via electronic means may face fines and jail. The maximum fine is $250,000 and the maximum prison sentence is three years.
Digital Millennium Copyright Act (DMCA): DMCA was enacted in late 1998. It updated the U.S. Copyright Act to help address copyright protections on the internet and to comply with international copyright law – the World Intellectual Property Organization (WIPO) Copyright Treaty and the WIPO Performances Phonograms Treaty.
Family Entertainment and Copyright Act: Peer-to-peer (P2P) file sharing helped drive the passage of this 2005 copyright law. In this two-part legislation, the Artist’s Rights and Theft (ART) Prevention Act section strengthens copyright protections against software and film piracy. It addresses both online infringement and bootlegging movies that have been recorded in theaters.
The first two laws were created when consumer internet use was in its infancy, and the last one, as growth was really taking off. Flash back to the end of 1998, when only 3.6% of the population around the globe was on the internet, and nearly 52% of those users were in the U.S. By the end of 2005, the worldwide percentage had grown to 15.7 with more than 1 billion internet users.
Recent estimates say there are 345 million internet users in North American, representing 95% of the population. Worldwide, the number of users is over 4 billion, slightly over half the world’s population at 55.1%. Clearly, there are a lot more eyes on your and everyone else’s media that is published online.
Copyright Infringement Lawyer – Mandour & Associates
If you are involved in a copyright infringement or copyright litigation matter‚ we highly recommend that you seek the advice of a copyright lawyer before making any contact with the other side. We have offices throughout southern California in San Diego‚ Orange County and Los Angeles. In you need assistance with a copyright issue, we will be happy to help.
If you are interested in having our law firm assist you with a copyright infringement issue‚ please contact us.