An owner of a copyright enjoys several exclusive rights, including:
- The right of reproduction (reproduce, copy, or duplicate a work in a fixed form);
- The right to prepare derivative works based on or inspired by the original;
- The right to distribution (sell, rent, lease, or license a work);
- The right to display; and
- The right to performance (including the right to perform publicly by means of digital and audio transmission).
Elements of a Copyright Infringement Claim
In order to successfully bring a claim of copyright infringement, the following elements must generally be proven:
- The person bringing the claim must be the owner or assignee of a valid copyright that is registered with the U.S. Copyright Office;
- The work was actually copied by the infringer. This can be proven by showing either that the infringing work is basically a duplicate of the original, or that the infringing work is “substantially similar” to the original and the infringer had access to the original; and
- If only parts or portions of a copyrighted work are copied, that these sections of the work are protected by copyright.
Copyright protection applies to pictures, videos, and other information that is published on the internet as well as in other fixed mediums. Additionally, a published work is generally protected by copyright regardless of whether a “©” notice is used or other notice is given that a work is protected by copyright.
If a person or business is found to have infringed another’s copyright, they can be found liable for lost profits or other actual damages that the copyright holder sustains. If an infringement occurs after a work is properly registered with the copyright office, an infringer can be found liable for statutory damages of between $750 and $30,000 per infringement. If it is additionally found that an infringement was intentional or willful, statutory damages for copyright infringement can go up to $150,000 per infringement.
Copyright holders in some cases can also obtain equitable remedies, such as court ordered injunctions, impoundment and destruction of infringing goods, and even awards of attorneys fees.
Defenses to Copyright Infringement
Not all copying is copyright infringement. There are generally three types of defenses available to defend against a claim of copyright infringement:
- Fair Use. The fair use doctrine permits the use of copyrighted material for limited purposes that usually involve criticism, news reporting, comment, teaching, research, and scholarship;
- The Work Used is Not Protected by Copyright. For example, ideas and unexpressed concepts are not copyrightable. Only the expression of a concept or idea can be copyrighted. Another example would be if a work is in the public domain and no longer protected by copyright.
- Independent Creation. Infringement cannot occur unless there is unauthorized copying or use. Thus, if another person independently creates a work that is remarkably similar to another, this may not be infringement.
Copyright Infringement Removal Attorneys
If you believe that you or your business is a victim of a copyright infringement, contact the experienced internet attorneys at Minc Law to evaluate your case. Under current laws, it is possible for an attorney to completely remove infringing content from the web immediately. Call (216) 373-7706 today to find out more information.
“Absolutely outstanding! Minc Law resolved my copyright infringement case, which had been languishing for over five years, in under six months. Superb outcome, lovely people, cannot recommend the firm highly enough!”
Sonya Dunne, March 15, 2021