Copyright is a form of intellectual property law that protects an author’s original works, such as dramatic, musical, literary and visual works of art, from unauthorized use. It covers both published and unpublished work but does not protect facts, ideas, methods of operation, and systems. Copyright registration is not mandatory, but you must register your work to bring a lawsuit for infringement but, if you have not registered before the infringer commences the infringing activity, you will likely be limited in the monetary relief you may be awarded.
Copyright infringement occurs when another party uses registered copyrighted work without authorization from the owner. When infringement occurs, the copyright holder may initiate copyright litigation in a federal district court.
What are the elements of a copyright infringement claim?
In a copyright infringement claim, the holder must prove to the court that he or she legally owns the copyright. The plaintiff must prove that the copyright is valid and that he or she owns it. There should also be enough evidence of unauthorized copying by the defendant.
The plaintiff must prove that the infringer had access to their work before the alleged copying. In addition, there must be a substantial similarity between the original and copied work. Finally, the copied elements must also be protected by the law, i.e. there must be copying of the expression, not copying of the abstract ideas.
What defenses are there to a copyright infringement claim?
The defendant may try to counter a copyright infringement claim with the following defenses;
- Showing that the allegedly infringing work is an independent creation and not copied
- Claiming that the owner had authorized them to use the infringing copyright
- Claiming that the three years provided by the statute of limitations had expired when the infringement occurred
- Claiming that the copyright owner had intentionally placed his or her work in the public domain with no restriction on use
- Claiming that the registration of the copyright was defective, obtained with knowing false statements, or otherwise subject to invalidation.
- Claiming that the use made of the copyrighted work was fair use, e.g., for criticism or commentary, or it was intended as a parody of the original.
What are the remedies for copyright infringement?
The remedies for copyright include:
- Court order restraining the infringer from using the copyright in the future.
- Destruction of copies of the infringing work.
- Payment to the copyright holder of any profits that the infringer received and compensation for any loss suffered by the holder.
- Alternative to profits and/or actual damages, the holder may seek an award of “statutory damages.”
- Attorneys’ fees.
Proving copyright infringement is full of technical aspects and is best pursued with the help of a lawyer. If you believe your copyrighted work has been used inappropriately, seek the help of a specialist.