Has My Copyrighted Work Been Infringed?
Author: Karen Y. Kim
To be eligible for copyright protection, a work must be an “original work of authorship” that is “fixed in a tangible medium” and possessing a modicum of creativity. A copyright owner enjoys the following exclusive rights:
- to reproduce the work
- to prepare derivative works based upon the work
- to distribute copies of the work
- to perform the work
- to display the work
- and, in the case of sound records, to perform the work publicly through a digital audio transmission.
Use of the copyrighted work in any of these ways without the owner’s permission is known as copyright infringement. If your copyrighted work has been infringed, you can file a claim for copyright infringement in federal court. While a federal copyright registration is not necessary to receive protection, registration is required to bring a copyright infringement claim. Further, you must bring the action within three years of discovering the infringing action took place.
In order to bring a successful copyright infringement claim, the plaintiff has the burden of proving:
- The plaintiff is the owner of a valid copyright in the work or has the legal authority to bring the lawsuit;
- The defendant infringed the plaintiff’s copyright, either by providing evidence that shows:
- the defendant had access to the copyrighted work and there’s a substantial similarity between the defendant’s work and the copyrighted work; or
- the defendant’s work has a striking similarity to the copyrighted work (where no evidence of access is available).
If a plaintiff is successful in proving copyright infringement, there are two types of damages that can be recovered: actual damages (i.e., lost revenue or sales), plus the profits of the infringer, and statutory damages. An infringer’s profits can only be recovered when those profits exceed the plaintiff’s actual damages. Statutory damages range from $750 to $30,000 per work and, if the plaintiff can prove infringement was willful, up to $150,000 per infringement. Copyright owners may recover either actual damages (plus profits) or statutory damages, but not both. To recover statutory damages, copyright owners must have registered the work prior to the infringement or within three months of the work’s first publication.
There are three common defenses to copyright infringement claims. First, the work is not covered by copyright. For instance, ideas or facts are not protected by copyright, only the expression of those ideas or facts are. So if a work incorporates ideas or facts that were included in a copyrighted work but expresses them in an original way, copyright is not infringed. Another defense is that the defendant independently created the work. A work is infringed if a defendant makes or uses an unauthorized copy. If by chance, the defendant independently creates a work that is similar to the copyrighted work, then there is no infringement.
Finally, the third common defense to copyright infringement is that of fair use. Fair use is the idea that a copyrighted work may be used for purposes that are beneficial to society, such as journalism, criticism, commentary, satire, parody, teaching, scholarship, and research. For satire or parody to be considered fair use, the work must not merely appropriate the original work but must have some social commentary or criticism.