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Basic Overview Of Copyright Infringement
©2019, Melissa C. Marsh.
Written: 3/1/2001  
By: Melissa C. Marsh

Can A Copyright Infringement Lawsuit Be Filed?

Pursuant to the U.S. copyright laws before attempting to bring a copyright infringement lawsuit, you should first determine whether you have standing to sue. To bring a copyright infringement lawsuit in the United States you must be able to show the following:

  1. the portion of the work infringed was protected by a valid copyright (the work was original and fixed in a tangible medium of expression such that it could be seen or heard for more than an instant and was not a mere idea, procedure, process, system, concept, method, or discovery;

  2. the work was registered with the Copyright Office; and

  3. the registered copyright protected work was created before the allegedly infringing work.

Once you can show or prove the above three elements, then you should assess whether of not you can actually prove infringement. As direct evidence of copyright infringement is rare (e.g. witnesses or an admission by the defendant), more often than not the plaintiff will have to prove copyright infringement based on the circumstantial evidence. Assuming the copyrighted work was registered and protected by a valid copyright notice before the alleged infringer created the substantially similar work, the copyright owner will still have to show:

  1. the alleged infringer had access to the plaintiff's work; and

  2. clear evidence that the alleged infringer must have copied the plaintiff's work because the two works are substantially similar.

Access To Your Copyright Protected Work

To prove the alleged infringer had "access" to your copyright protected work, you must show that the alleged infringer had a reasonable opportunity to read, see, view, or hear your copyright protected work before the alleged infringer created the substantially similar work. Generally, the mere fact that you published your work first should be sufficient to show access. However, if your work remained unpublished, proving access may be more difficult as a direct connection between your copyright protected work and the infringer may have to be shown.

Copyright Infringement Requires Copying and Substantial Similarity

Copying is generally proved by showing that the plaintiff's work and the work of the alleged infringer are so similar that copying must have occurred.

If in fact it was a protectable expression, and you can show the alleged infringer had access to your work, then the next step is to evaluate whether the use of your copyright protected work was substantial.

The is no hard and fast rule to define what constitutes a "substantial similarity," and generally this element is decided on a case-by-case basis. Nevertheless, there are some basic standards. First, to prove substantial similarity, the plaintiff need not demonstrate that the two works are identical, but the similarities must be adjudicated to be "substantial" as opposed to merely somewhat similar. So how does the court make this type of decision? Generally, the courts will employ what has come to be known as a reasonable person test. The court will often ask, would a reasonable person seeing, viewing, reading or hearing the two works for the first time believe the two works are the same. If the answer is yes, the court will likely find that the two works are in fact "substantially similar".

Thus if you believe you can prove that: (1) the alleged infringer has access to your work, (2) the two works are substantially similar such that copying must have occurred, and (3) the defendant lacks any affirmative defense such as parody or fair use, then a copyright infringement lawsuit should have a good potential for success.

Penalties For Copyright Infringement

If the copyright owner has registered his copyright before any infringement takes place, he may be able to recover damages in a multitude of ways. He may ask the court for actual damages, statutory damages, the infringer's profits, attorney's fees, an injunction, impoundment of the illegal copies, and / or destruction of the illegal copies.

Under the copyright act, a copyright owner is entitled to choose whether to seek actual damages or statutory damages. Where actual damages are hard to prove or negligible, statutory damages often are the better alternative. Statutory damages range from a minimum of $500 to a maximum of $20,000 per copyrighted work infringed, but if the copyright owner can prove the infringement was willful (intentional and knowing) the court may award up to $100,000. However, it should be noted that the damages to be awarded are at the discretion of the judge and can be as low as $200 where the judge or jury finds the infringer acted innocently, and can be significantly higher where the judge or jury finds the defendant acted willfully (in which case the judge will be predisposed to also award attorneys fees and costs).

Copyright 1999-2019 Melissa C. Marsh. All Rights Reserved. All Information on this website is subject to a Disclaimer and Use Agreement. This information is provided as general information only and should not be construed as legal advice. We advise you to seek the advice of competent legal counsel to address your own specific questions, facts and circumstances.

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