Copyright infringement occurs when someone violates the exclusive rights of a copyright owner without authorization. The copyright owner can bring civil action seeking injunctions, damages, and attorney fees. Willful infringement for profit can also result in criminal prosecution. Enforcement protects the value of creative works.
Elements of Infringement
Ownership of valid copyright must be proven. Registration certificate provides prima facie evidence. Without registration, the plaintiff must prove originality and fixation.
Copying by the defendant requires showing the defendant actually copied rather than independently created. Direct evidence of copying is rare. Circumstantial proof through access and substantial similarity is standard.
Access means opportunity to copy. Wide distribution creates presumed access. Limited circulation requires proving actual exposure.
Substantial similarity between the works shows copying of protected expression. Not all similarity counts. Only copied protected elements matter.
Idea versus expression distinction limits what similarity proves. Similar ideas do not infringe. Similar expression does.
Exclusive Rights
Reproduction is the right to make copies. Physical copies, digital files, and any other fixation implicate reproduction.
Distribution is the right to distribute copies to the public. First sale doctrine limits this right for lawfully made copies.
Public performance is the right to perform the work publicly. Musical performances, theatrical productions, and public displays of audiovisual works implicate this right.
Public display is the right to show copies publicly. Art exhibitions and public screens implicate display rights.
Derivative works are the right to create works based on the original. Translations, adaptations, and sequels are derivative works.
Digital transmission of sound recordings is an additional right for that category. Streaming music implicates this right.
Fair Use Defense
Fair use permits certain unauthorized uses. The defense is affirmative, meaning the defendant must raise and prove it.
Four factors guide analysis. Purpose and character of use, nature of copyrighted work, amount used, and effect on potential market.
Transformative use favors fair use. Using the work for new purpose or adding new expression supports the defense. Mere reproduction for the same purpose weighs against.
Commercial use weighs against fair use but is not determinative. Commercial transformative uses can still be fair.
Amount used considers both quantity and qualitative importance. Using the heart of the work weighs against fair use even if the quantity is small.
Market effect considers harm to both existing and potential markets. Superseding uses that substitute for the original weigh heavily against fair use.
Other Defenses
License or authorization defeats infringement. Express or implied permission allows use. Scope of license matters.
Independent creation is complete defense. Copyright does not protect against coincidental similarity from separate creation.
Statute of limitations is three years for civil claims. The trigger for limitations in ongoing infringement is contested.
Laches bars claims where unreasonable delay prejudices the defendant. Even within limitations, delay can limit relief.
First sale doctrine allows resale of lawfully made copies. The owner of a particular copy can sell or give it away.
Remedies
Injunctions stop ongoing and prevent future infringement. Preliminary injunctions require showing likelihood of success and irreparable harm.
Actual damages compensate for proven losses. Lost profits, lost licensing fees, and other provable harm are recoverable.
Infringer’s profits are available as alternative to actual damages. Disgorgement prevents unjust enrichment.
Statutory damages are available for registered works. The range is $750 to $30,000 per work, increased to $150,000 for willful infringement, reduced to $200 for innocent infringement.
Attorney fees may be awarded to prevailing parties. Registration before infringement is prerequisite for fee awards.
Impoundment and destruction of infringing copies is available. Courts can order seizure and destruction of infringing materials.
DMCA Provisions
Section 512 safe harbors protect online service providers from liability for user-generated content. Notice and takedown procedures govern removal of infringing material.
Takedown notices must identify the copyrighted work, the infringing material, and include required statements. Service providers must expeditiously remove identified material.
Counter-notifications allow users to dispute takedowns. Proper counter-notice triggers put-back unless the copyright owner files suit.
Anti-circumvention provisions prohibit bypassing technological protection measures. Separate from infringement, circumvention itself is prohibited.
Criminal Prosecution
Willful infringement for commercial advantage or financial gain is criminal. Criminal penalties include imprisonment and fines.
Criminal copyright infringement is prosecuted by DOJ. Most cases involve large-scale commercial piracy.
Pre-release distribution of works being prepared for commercial distribution carries enhanced penalties.
Repeat offenders face increased sentences. Prior convictions enhance criminal exposure.
For Service Members
Copyright enforcement and defense intersect with military service in multiple ways.
Government use of copyrighted works follows different rules. The government can use patented inventions with compensation to owners. Copyright has more limited government use provisions.
Military bands and entertainment involve performance rights. Licensing for base events and military productions requires attention.
Infringing materials on military networks can create liability issues. Command responsibility for network content is possible.
Personal infringement by service members can affect careers. Copyright infringement that constitutes misconduct may trigger UCMJ or administrative action.
Deployment interrupts litigation. SCRA stays allow pausing infringement actions during service.
Security concerns may limit what can be disclosed in litigation. Works containing classified information create discovery complications.
Defense contractor intellectual property disputes involve specialized provisions in contracts. Government rights in contractor-developed works follow contract terms.
A military attorney understands how government use provisions affect military copyright situations, how SCRA affects infringement litigation, and how intellectual property disputes intersect with security concerns.
Disclaimer
This article is provided for general informational and educational purposes only. Nothing in this article constitutes legal advice, and no attorney-client relationship is formed by reading this content.
Copyright infringement litigation is complex and fact-intensive. Fair use analysis is unpredictable. Damages calculations require expertise. The information presented here may not reflect current law or apply to any specific situation.
Do not rely on this article to make legal decisions. Both asserting and defending against infringement claims require careful analysis by qualified counsel.
If you are facing a copyright dispute, consult with a qualified intellectual property attorney who can evaluate your situation and advise on options.
The authors, publishers, and distributors of this content expressly disclaim any liability for actions taken or not taken based on this information. Reading this article does not create an attorney-client relationship with any person or entity.
For service members involved in copyright matters, the intersection of military service with intellectual property requires counsel familiar with both areas.