1. Infringement Claims and Defenses Professor Todd Bruno

2. Elements of Infringement Ownership of Copyright Ownership of Copyright Copying or invading one of the exclusive rights of copyright owners Copying or invading one of the exclusive rights of copyright owners

3. How to prove ownership? Author Author certificate of copyright registration is prima facie evidence certificate of copyright registration is prima facie evidence transfer transfer

4. Copying: substantial similarity between his work and that of defendant – some map makers include fictitious entries. Lay observer or ordinary observer test. Depends on audience. substantial similarity between his work and that of defendant – some map makers include fictitious entries. Lay observer or ordinary observer test. Depends on audience. access to copyrighted work – can be inferred if work is widely disseminated; if 2 works are clearly identical, it may be presumed. access to copyrighted work – can be inferred if work is widely disseminated; if 2 works are clearly identical, it may be presumed.

5. Innocent Infringement is NOT a defense A gets book from B that C actually wrote; A copies it…this is infringement even though he does not know it or intended to infringe A gets book from B that C actually wrote; A copies it…this is infringement even though he does not know it or intended to infringe May be subconscious (remember George Harrison) May be subconscious (remember George Harrison)

6. Most Common Defenses 1. Copyright invalidity can include : the work was not original, lacked copyrightable subject matter (common facts or just “sweat of the brow”) the work was not original, lacked copyrightable subject matter (common facts or just “sweat of the brow”) P is not the owner of the copyright. P is not the owner of the copyright. Contents of the work are in the public domain. Contents of the work are in the public domain. Copyright was not properly registered and thus the court lacks jurisdiction to hear the case so the claim is not proper Copyright was not properly registered and thus the court lacks jurisdiction to hear the case so the claim is not proper

7. Most Common Defenses 2. Independent creation is a complete defense to copyright infringement although it is sometimes difficult for a D to prove independent creation.

8. Most Common Defenses 3. Admission of copying but….. “De minimis” use is a defense that admits copying but claims that the amount taken is so small that it makes no difference. It is often coupled with a fair use defense. “De minimis” use is a defense that admits copying but claims that the amount taken is so small that it makes no difference. It is often coupled with a fair use defense. Similar to de minimis is a defense that what was copied was not protectable, such as copying just the facts from a work and not protected expression. Similar to de minimis is a defense that what was copied was not protectable, such as copying just the facts from a work and not protected expression.

9. Most Common Defenses 4. Fair use - In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-- (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work (fact or fiction?); (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole (“essence” of the work); and (4) the effect of the use upon the potential market for or value of the copyrighted work (most important).

10. Other defenses The copyright may be expired, or the holder may have forfeited his or her rights in the work The copyright may be expired, or the holder may have forfeited his or her rights in the work The statute of limitations may have run (three years for civil infringement and five years for criminal infringement). The statute of limitations may have run (three years for civil infringement and five years for criminal infringement). The copyright owner may have granted permission to use the work or licensed its use The copyright owner may have granted permission to use the work or licensed its use

11. Bad Defenses – Innocent Intent (might affect damages) A. Unconscious plagiarism, i.e., copying from P but later forgetting the source, is innocent, but it is nonetheless infringement. A. Unconscious plagiarism, i.e., copying from P but later forgetting the source, is innocent, but it is nonetheless infringement. B. Another example of innocent intent is where D relies on the work of a third party and the third party copied from P. Again, D is not relieved of liability. C. D may consciously copy from P's work believing in good faith that this conduct does not constitute an infringement of copyright. Such innocence will not preclude a determination of liability. D. Remember that claims of innocent infringement are cut off if the work contains a notice of copyright.

12. Remedies Reasonable temporary and final injunctions, as appropriate, to prevent or restrain infringement of a copyright. Reasonable temporary and final injunctions, as appropriate, to prevent or restrain infringement of a copyright. While court actions are pending, the court may impound any copies of the copyrighted work that have been claimed to have been made or used in the infringement. While court actions are pending, the court may impound any copies of the copyrighted work that have been claimed to have been made or used in the infringement. If infringement is proven, the court may order destruction of any copies of the copyrighted work that have been claimed to have been made or used in the infringement. If infringement is proven, the court may order destruction of any copies of the copyrighted work that have been claimed to have been made or used in the infringement.

13. Remedies The copyright infringer is liable for the copyright owner's actual damages and any additional profits of the infringer, or statutory damages. the copyright owner's actual damages and any additional profits of the infringer, or statutory damages. Attorney's fees may be awarded by a court to whichever party wins. Attorney's fees may be awarded by a court to whichever party wins. Statutory damages and attorney's fees cannot be awarded if, at the time of the infringement, the work is unpublished the work is unpublished the work is published, but not yet registered with the copyright office. (The only exception to this is if the infringement occurs right after the work is first published and the work is subsequently registered with the copyright office within three months of first being published.) the work is published, but not yet registered with the copyright office. (The only exception to this is if the infringement occurs right after the work is first published and the work is subsequently registered with the copyright office within three months of first being published.)

14. Remedies Infringement in some circumstances where the infringer makes a profit may be a criminal offense. The copyright statute of limitations is 5 years for criminal offenses and three years for civil claims.