Copyright Infringement

When any of the exclusive rights of copyright are exploited without a copyright owner's permission, copyright infringement has occurred. There are two types of infringement: primary and secondary. A primary infringement involves a direct infringement by the defendant. Secondary infringement happens if someone facilitates another person or group in infringing on a copyright.

There are two types of secondary infringement, contributory and vicarious infringement, neither of which is expressly prohibited under the Copyright Act, but which have arisen as prohibitions under case law. Somebody who knowingly induces, causes, or materially contributes to copyright infringement can be held liable as a contributory infringer if he or she knew or had reason to know of the infringement. Courts will determine whether a person or organization is vicariously liable to see whether the superior party (such as an employer) profited from the infringement of the primary or direct infringer and had supervisory authority over the direct infringer.

To enforce a copyright, a copyright holder typically sends a cease and desist letter to the person or entity exploiting an exclusive right. In some cases, multiple cease and desist letters are sent. However, if correspondence fails, the copyright holder may sue in federal district court to enforce his or her rights. When a copyright is registered with the Copyright Office, the infringer may have to pay the copyright holder statutory damages and possibly attorneys' fees. An infringer will also be prohibited from continuing to use the work.

What Does a Plaintiff Have to Prove in a Copyright Infringement Lawsuit?

When a plaintiff brings a copyright infringement lawsuit for primary infringement, he or she must prove copyright ownership and that the defendant copied or otherwise violated his or her rights in original aspects of the copyrighted work. Often, proof of copying is accomplished through circumstantial evidence when a plaintiff demonstrates that the defendant had access to the original work and that there is a substantial similarity between both works. Courts determine substantial similarity by looking for similarities between the two works, including their formats, appearance, sound or words, and sequence. While owners do not need to put a notice on their work or register it with the Copyright Office, taking these steps in a timely fashion makes it easier to establish a copyright infringement case later.

Copyright Infringement Damages

A copyright holder can recover actual damages and the infringer's profits if he or she successfully proves copyright infringement. Actual damages are measured by the "lost market value" at the time of infringement. When establishing profits, the copyright owner must prove the infringer's gross revenue, and the infringer must prove deductible expenses and elements of profit that can be attributed to factors other than the original work of authorship. A copyright owner can elect before judgment to recover statutory damages for all infringements in an amount between $750 and $30,000 as the court considers fair.

If the work was registered with the Copyright Office within three months of the work's publication or before the infringement, the owner can recover statutory damages and attorneys' fees without proving actual damages. Statutory damages, rather than actual damages, must be awarded when an infringer had reasonable grounds for believing his or her work falls under the fair use doctrine if the infringer is an employee or agent of a nonprofit educational institution or library that infringes within the scope of employment by reproducing the work, or the infringer is a public broadcasting entity that infringes by performing or reproducing a nondramatic literary work.

Criminal penalties are available when infringement is "willful." If the court finds that the infringement was willful, the court can increase the statutory damages award to a sum of up to $150,000. However, when an infringer did not have reason to believe his or her use was infringing, the court also has the discretion to reduce damages to no less than $200.


If you are sued for copyright infringement, common defenses your attorney may be able to raise are:

  • The statute of limitations has expired;
  • You had no reason to know the work was protected by copyright;
  • Your infringement is permitted under the doctrine of fair use;
  • You created your work independently without copying; or
  • You had a license to use the work from the copyright owner.

The least predictable of these defenses is the fair use defense. However, usually fair use is found when the allegedly infringing work is a criticism of the earlier work, reports the news, is considered scholarship, is considered a nonprofit educational use, or constitutes parody.

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