Copyright Symbols by Mike Seyfang
When someone copies a copyrighted work, the holder of the copyright accuses the copier of copyright infringement. Sometimes the holder of the copyright will make a demand that the other stop copying the material. Sometimes this demand to cease copying will include a demand for the payment of damages. “Damages” are the loss caused by an act of wrongdoing.
Sometimes the holder of the copyright proceeds straight to filing a lawsuit, or files a lawsuit if the demand was unsuccessful. The plaintiff in the lawsuit is the person who alleges he or she owns the copyright. The defendant is the person potentially infringing on the plaintiff’s copyright.
Copyrights do not have to be registered to be valid. Whether a copyright is registered, however, will affect which party bears the bulk of the burden in a copyright infringement lawsuit. This is because a registered copyright is presumed to be valid and a defendant must prove otherwise. An unregistered copyright is not presumed to be valid and the plaintiff must prove its validity.
Copyright Infringement Defenses
When faced with a potential copyright infringement, whether you are the copyright holder or accused of infringement, it is important to know the defenses that exist to copyright infringement. Putting forth a successful defense means the alleged infringer is not actually legally infringing, and the plaintiff receives no damages.
Independent Creation
If a person creates a work independently, without copying a copyrighted work, this is called independent creation. Independent creation is a defense to an allegation of copyright infringement.
License
If a person has a license to use a copyright, this means that the person had permission to use the copyright. Having a license is a defense to an allegation of copyright infringement.
Fair Use
If the use qualifies as “fair use” there is no copyright infringement.
The fair use doctrine allows limited copying of copyrighted material under certain circumstances where authors would reasonably expect it and when it does not unfairly undermine the copyright protection.
Examples of fair use may be: parodies, satires, news reports, critiques, teaching, research, or reverse engineering. Factors that are considered in determining whether copying is fair use include: (a) the purpose and character of the use (ex: teaching vs. commercial purposes), (b) the nature of the copyrighted work (the more creative the work, the more protection the work receives), (c) the amount or portion of the copyrighted work used, (d) the effect on the market or effect on the value of the copyrighted work cause by the copying (ex: diminished demand for the copyrighted work vs. no change in demand for the copyrighted work), and (e) other relevant factors.
Abandonment
If a person abandons a copyright, this means that the person has shown an intent to surrender his or her right to the copyrighted work. Merely not using a copyright is not abandonment. Failing to enforce a person’s exclusive rights to a copyright over a period of time may show an intent to surrender rights to the copyrighted work. Abandonment by the original holder of the copyright is a defense to an allegation of copyright infringement.
Misuse
A person’s misuse of their copyright may provide a defense to copyright infringement.
Barred by the Statute of Limitation
A copyright infringement lawsuit may be barred by the statute of limitations. The Copyright Act requires that a copyright infringement case be initiated within three years of the time the owner of the copyright knows or should have known of the infringement.
