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​What are the Elements of a Copyright Infringement Claim?

May 15, 2020

Federal law provides a copyright owner the exclusive right to use copyrighted materials for a wide range of purposes, including exhibiting or performing the work, making and distributing copies of the work, and creating derivative works from the original. Use of a copyrighted work without the owner’s permission is known as copyright infringement.

A copyright owner can sue for an injunction to prohibit further unauthorized use of the copyrighted materials by the defendant, and to recover damages. A plaintiff alleging copyright infringement in a civil lawsuit must establish two elements by a preponderance of the evidence. The Department of Justice can establish criminal copyright infringement by proving the same elements, plus two additional elements, all beyond a reasonable doubt.

Elements of a Civil Copyright Infringement Claim

The plaintiff in a copyright infringement lawsuit has the burden of proving two elements: that they own a copyright, and that the defendant infringed it.

  1. The Plaintiff Owns a Valid Copyright

To establish ownership of a valid copyright, a plaintiff must demonstrate that the work is original, and that it is subject to legal protection. Copyright law protects “original works of authorship” that exist—or could exist—in a “tangible medium of expression.” This includes books and other literary works, musical compositions, musical recordings, visual works like paintings or photographs, films and videos, and computer code. The U.S. Supreme Court has held that “[o]riginality is a constitutional requirement” in copyright law, and it “requires independent creation plus a modicum of creativity.” Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346 (1991).

Certain works are not subject to copyright protection. These include:

  • Logos, business names, or brand names, which might be subject to trademark protection;
  • Processes or systems, which might be subject to patent protection;
  • Information that is generally known to the public;
  • Statutes, court decisions, and other public materials; and
  • Ideas and concepts.

In Baker v. Selden, 101 U.S. 99 (1879), the Supreme Court held that, while a book describing a particular system or process could be protected by copyright, that protection does not extend to the system or process itself.

Next, the plaintiff must establish that they have complied with the formal requirements found in federal copyright law for giving notice about a copyright. Registering a work with the U.S. Copyright Office is not necessarily required, but it creates rebuttable presumptions as to both validity and ownership.

The Supreme Court rejected “common law copyright” for published works, meaning the right of the creator of a work to control it without following statutory procedures, in Wheaton v. Peters, 33 U.S. 591 (1834). Unpublished works can still be subject to protection without being registered. Since the Constitution gives Congress the power to establish copyright laws, the Court held that once a creator has “published their work to the world,” id. at 657, they must abide by the procedures set by statute.

  1. The Defendant Infringed the Plaintiff’s Copyright

The plaintiff must prove that the defendant violated their exclusive rights to the copyrighted work. Some situations are relatively easy to prove, such as the display of a copyrighted photograph, the broadcast of a copyrighted video, or the performance of a copyrighted play without authorization. In situations that involve unauthorized copying of a copyrighted work, or unauthorized creation of a derivative work, establishing infringement can be much more challenging.

Circumstantial evidence may assist a plaintiff in proving that the defendant copied their work. The plaintiff can show “substantial similarity” between the copyrighted work and the defendant’s work, along with evidence that the defendant saw the copyrighted work or had access to it before creating their work. This can help establish that the defendant actually used the copyrighted work. Without evidence that the defendant had access to the work, the plaintiff must show a “striking similarity” between the two works.

A person does not infringe a copyright merely by using information contained in a copyrighted work. In the Feist case cited above, the Court held that a telephone directory was protected by copyright as a whole, since the telephone company expended effort on compiling the information and presenting it in a particular format. Using names and addresses contained within the directory, however, was not copyright infringement.

Additional Elements for Criminal Copyright Infringement

Copyright infringement could be a criminal offense if the alleged infringer meets two additional elements.

  1. The Defendant Acted Willfully

A “willful” act, in this context, means that a person acted intentionally in a way that violated the law. Federal appellate courts are split on what prosecutors must prove:

  • The defendant willfully copied or otherwise used the copyrighted work, or
  • The defendant willfully infringed the copyright.

Most courts have adopted the latter standard, requiring proof beyond a reasonable doubt that a defendant intended to infringe a copyright.

  1. The Defendant Sought “Commercial Advantage or Private Financial Gain”

Prosecutors must show that a defendant intended to make money or obtain some other gain from their infringement. It is not necessary to show that they actually gained anything.

Federal law includes two alternatives to the “commercial advantage” element that could also establish criminal copyright infringement:

  • The defendant made copies of copyrighted works with a combined retail value of at least $1,000 during a period of 180 days; or
  • The defendant made a work available to the public on a computer network, with knowledge that the copyright owner intended to distribute it commercially in the near future.

If you would like to speak with an attorney about defending or bringing a copyright claim action, please contact Bona Law at +1-858-344-2802 or