Copyright Infringement and Remedies
Copyright infringement is the unauthorized use of copyrighted material. Understanding how infringement is proven and what remedies are available is central to copyright law, since these rules determine how owners actually enforce their rights.
Elements of Copyright Infringement
To win an infringement claim, the plaintiff must prove two things: (1) they own a valid copyright, and (2) the defendant copied original elements of the work.
Ownership of a valid copyright
The plaintiff needs to show they hold a valid copyright in the work. A copyright registration certificate serves as prima facie evidence of ownership and validity, meaning the court will presume the copyright is valid unless the defendant can prove otherwise.
Copying of original elements
The plaintiff must then prove the defendant actually copied the work. This can be shown through:
- Direct evidence of copying, such as admissions by the defendant or witness testimony
- Circumstantial evidence, which requires showing both:
- Access to the copyrighted work (e.g., the work was widely distributed, or the defendant had a documented connection to it)
- Substantial similarity between the two works (e.g., unique elements appear in both, or there's a striking resemblance that can't be coincidental)
One critical limitation: copying must involve original elements of the work. Ideas, facts, and public domain material are never protected. So copying a historical event from someone's book isn't infringement, but copying their particular expression of that event could be.
Types of Similarity in Copyright Cases
Courts recognize two main types of similarity when evaluating whether copying occurred.
Fragmented literal similarity means the defendant copied verbatim elements or exact phrases from the original, like specific lines of code or song lyrics. Courts assess this through side-by-side comparison. Even a small amount of literal copying can be infringing if the copied portion is qualitatively significant. For example, copying a single memorable passage that represents the "heart of the work" may be enough.
Comprehensive nonliteral similarity involves copying the overall structure, sequence, or organization of a work without lifting exact words or code. Think of someone who rewrites a novel using the same plot, characters, and narrative arc but different sentences. Courts use a more holistic comparison here, looking at abstractions and patterns rather than exact matches. This type generally requires a higher degree of similarity to be actionable, since you're comparing structures rather than specific text.
Damages for Copyright Infringement
Once infringement is proven, several categories of damages may be available.
Actual damages compensate the copyright owner for real losses caused by the infringement. These are measured by the market value of the infringing copies or the owner's lost profits, typically supported by sales records and expert testimony.
Statutory damages are an alternative to actual damages. They're available only if the work was registered before the infringement began or within three months of publication. The range is:
- to per infringed work, at the court's discretion
- Up to per work for willful infringement (the infringer knew or recklessly disregarded that they were infringing)
- As low as per work for innocent infringement (the infringer genuinely didn't know and had no reason to know)
Statutory damages are often preferred because the plaintiff doesn't need to prove actual harm, and the potential awards can be significantly higher than provable losses.
Profits of the infringer can also be recovered. The plaintiff only needs to show the infringer's gross revenue from the infringing activity. The burden then shifts to the infringer to prove deductible expenses and any portion of profit attributable to factors other than the copyrighted work.
Costs and attorney's fees may be awarded to the prevailing party at the court's discretion. This serves two purposes: it encourages owners to pursue legitimate claims and deters frivolous lawsuits.
Additional Forms of Liability and Defenses
Secondary liability extends infringement claims beyond the person who directly copied the work:
- Contributory infringement occurs when a party knowingly induces, causes, or materially contributes to someone else's infringement. The key element is knowledge of the infringing activity combined with material participation.
- Vicarious liability is imposed when a party has the right and ability to supervise the infringing activity and has a direct financial interest in it. Unlike contributory infringement, actual knowledge of the infringement isn't required.
Fair use is the most well-known defense to infringement. It allows limited use of copyrighted material without permission for purposes such as criticism, commentary, news reporting, teaching, scholarship, or research. (Fair use has its own multi-factor test, covered elsewhere in this unit.)
Cease and desist letters are a common first step before litigation. The copyright owner sends a formal demand that the alleged infringer stop the infringing activity. These aren't a legal remedy on their own, but they put the infringer on notice, which can be relevant if the case later goes to court (since the infringer can no longer claim innocence).