California Copyright Infringement Attorney

About the author: Scott Lesowitz is a 2007 Harvard Law School graduate and former Assistant United States Attorney whose civil litigation practice is based in Southern California. Scott is a founding partner of Lesowitz Gebelin LLP. Scott lives in San Diego with his wife, three children, and bernedoodle. Scott represents clients throughout California, including San Diego, Los Angeles, and Orange Counties.

Copyright disputes often turn on highly fact-specific questions, and their outcomes can be difficult to predict even for experienced participants. Questions such as whether two works are “substantially similar” or whether a use qualifies as fair use often depend on nuanced factual details and context-driven legal standards.

These uncertainties make copyright litigation particularly risky for both plaintiffs and defendants. A rights holder may invest substantial resources pursuing a claim only to find that a court views the works differently than expected, while an accused infringer may face strict liability even without intentional wrongdoing. Early decisions—such as whether to seek injunctive relief, how to frame substantial similarity, or how to address copyright registration timing—often have outsized effects on the ultimate outcome of a case.

As a California copyright infringement attorney, I represent plaintiffs and defendants in California copyright infringement litigation, including disputes involving music, film, software, online content, and other creative works. Given the fact-intensive nature of these cases and the strategic importance of early litigation choices, consulting experienced counsel at the outset can be critical to protecting your rights and managing risk.

If you are involved in a copyright dispute in California—whether you believe your work has been infringed or you have been accused of infringement—I welcome you to contact me to discuss the matter.

Below is a brief overview of copyright law and copyright infringement litigation in California. This is not a complete overview, and this in no way is a substitute for personal legal advice from an attorney.

The Works Eligible for Copyright Protection and the Need to Register a Copyright

Nearly all “original works of authorship” can potentially receive copyright protection. Works do not have to have artistic merit to receive copyright protection. The list of works potentially eligible for copyright protection is broad and includes books, music, movies, plays, webpages, computer programs, videogames, architectural works, drawings, photographs, and so on.

Copyright law protects creative expression, not facts or ideas. However, the level of originality and creativity required for copyright is only “minimal.” For example, while facts themselves may not be copyrighted, a sufficiently original arrangement of facts may receive copyright protection.

An author automatically receives copyright protection in a work at the time he or she creates it and expresses it in some form of “medium of expression.” This can be when or she writes it down, types it into a computer, records it on a phone, etc. Formal copyright registration is not required.

However, before filing a copyright infringement lawsuit, the copyright holder must file an application for a copyright registration with the United States Copyright Office and wait for the process to be completed. The copyright holder may file the application for registration after the infringement takes place. However, the copyright holder may only be able to seek certain remedies if he or she submits the copyright registration application prior to the infringement or within the earlier of 3 months of publication or 1 month after learning of the infringement.

[Sources: 17 U.S.C. § 102; Tangle, Inc. v. Aritzia, Inc., 125 F.4th 991 (9th Cir. 2025); Woodland v. Hill, 136 F.4th 1199 (9th Cir. 2025); Fourth Estate Public Benefit Corporation v. Wall-Street.com, LLC, 586 U.S. 296 (2019); Star Athletica, LLC v. Varsity Brands, Inc., 580 U.S. 405 (2017); Lotus Development Corp. v. Borland Intern., Inc., 49 F.3d 807 (1st Cir. 1995).]

The Rights Provided to Copyright Owners and Fair Use

The owner of a copyright generally has the exclusive rights to reproduce it, distribute copies of it, perform it, display it, or create derivative works of it (a sequel of a movie being an example of a derivative work).

In the case of computerized content, courts have viewed what constitutes the creation of a new copy broadly. Furthermore, creators of software often include terms in user agreements limiting the ownership rights of purchasers.

Certain uses of copyrighted material may be permitted under the doctrine of fair use. A fair user does not need permission from the copyright owner and does not have to pay the copyright owner anything. Essentially, fair use is free use. Generally, fair use protects the usage of limited amounts of copyrighted material for purposes such as commenting on the material or reporting news directly related to the material. Whether a court would find a usage to constitute fair use or not can unfortunately be difficult to predict. This can lead to people being afraid to use copyrighted materials in ways that should be permissible because of uncertainty of what the outcome of a lawsuit would be.

This is yet another reason that experienced legal counsel is so important. One should note that a small usage of copyrighted material does not necessarily equate to fair use. For example, a very brief sampling of music in a song may constitute infringement. Because fair use determinations are often unpredictable and context-dependent, early legal guidance can help clarify risks.

For a deeper explanation of fair use, see my article on fair use.

[Sources: 17 U.S.C. §§ 106, 107, 113; Aquarian Foundation, Inc. v. Lowndes, 127 F.4th 814 (9th Cir. 2025); Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023); Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005).]

An Overview of Copyright Infringement Litigation from a California Copyright Infringement Attorney

A plaintiff in a lawsuit for copyright infringement must prove that he, she, or it owns a valid copyright and that the defendant copied elements of the work that are original. (The “plaintiff” is the person or entity who brings a lawsuit, and the “defendant” is the person or entity who is being sued.)

Literal copying is often not required for copyright infringement. The relevant question is whether the defendant’s work is “substantially similar” to the plaintiff’s work. One generally cannot take another person’s copyrighted work and merely make superficial edits to it to avoid liability for infringement. The plaintiff may prove that the defendant copied the work at issue by showing that the defendant had access to the plaintiff’s work and that the two works are similar in a relevant manner.

While the plaintiff must prove that an act of copying took place, copyright infringement is otherwise a strict liability tort. That means that one generally may be held legally liable (at fault) even if he or she did not knowingly or intentionally perform the actions that violated the plaintiff’s copyrights.

In the case of websites where the public posts content, the law provides a special notice and takedown procedure that website operators may follow to prevent liability under the Digital Millennium Copyright Act. The DMCA may even apply to content posted by independent contractors.

As a California copyright infringement attorney, I practice within the Ninth Circuit Court of Appeals. Courts in the Ninth Circuit have a unique process in determining whether there is substantial similarity. Courts compare the original work and allegedly infringing works in two different ways. One way (the “extrinsic test”) is from an objective point of view in which the court compares the specific expressive elements in the works that are protected by copyright. The other way (the “intrinsic test”) compares the works from the standpoint of an ordinary observer. Courts must account for both perspectives.

As stated above, before filing a copyright infringement lawsuit, the copyright holder must file an application for a copyright registration with the United States Copyright Office and wait for the process to be completed. The copyright holder may file the application for registration after the infringement takes place.

[Sources: 17 U.S.C. § 412; Yonay v. Paramount Pictures Corporation, 2026 WL 17168 (9^th Cir. 2026) (selected for publication); Skidmore v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020) (en banc); Fourth Estate Public Benefit Corporation v. Wall-Street.com, LLC, 586 U.S. 296 (2019); BWP Media USA, Inc. v. Clarity Digital Group, LLC, 820 F.3d 1175 (10th Cir. 2016).]

Monetary Damages, Injunctions, and Attorney’s Fees Awards in Copyright Infringement Litigation

There are generally two types of remedies that a court may provide in a copyright infringement lawsuit: money damages and an injunction.

The main goal of an infringement lawsuit is not necessarily the pursuit of a monetary payment (although it often is). There are many cases where injunctive relief is the primary objective. If a judge issues an injunction, generally it will be a court order that the defendant (the alleged infringer) may not use, display, or transfer the copyrighted work in the future. If the defendant disobeys the order, the court may hold the defendant in contempt of court. That can have serious consequences.

In many cases, but certainly not all cases, the plaintiff will request a preliminary injunction from the court. That would be an injunction that would be in effect until after the trial. Then the trial would determine whether the judge enters a permanent injunction or not. As it can take a long time for a case to get to trial, obtaining a preliminary injunction can be a major victory for a plaintiff with long-lasting implications.

In terms of monetary damages, the plaintiff may seek recovery of the plaintiff’s lost profits due to the defendant’s infringement. The plaintiff may also seek as damages the amount that the defendant profited from the infringement. The defendant’s revenues will be presumed to constitute pure profit unless the defendant can prove the defendant’s costs. Generally, the plaintiff cannot recover both the plaintiff’s lost profits and the defendant’s profits as this would usually amount to a double recovery.

Damages from copyright infringement can be difficult to prove. The law has various mechanisms to account for this. One is that courts may allow a plaintiff to base damages on what the amount of a reasonable royalty would be for use of the copyrighted material

Another way of accounting for the difficulty in proving damages is the availability of statutory damages in some copyright cases. Statutory damages are an alternative system of damages that the plaintiff may elect. The court determines the amount of damages to award for each separate act of infringement, with the lowest possible amount being $200 and the highest amount being $150,000. How much an award will be can seem subjective, although there are factors that will be considered, such as how bad the defendant’s conduct was and how serious the infringement was.

To be eligible for statutory damages, the work must have been in the process of being registered with the Copyright Office prior to the infringement or within the earlier of three months of publication or one month after the plaintiff learned of the infringing activity.

Courts in the United States generally do not award the prevailing party compensation for its attorneys’ fees. However, the Copyright Act specifically provides courts with the “discretion” to award attorneys’ fees in certain instances. In deciding whether to award the prevailing party attorneys’ fees, courts give “substantial weight” to the reasonableness of the losing party’s litigation position and “all other relevant factors.” When deciding whether to award attorneys’ fees against a losing defendant, the court will likely factor in how bad the defendant’s infringing actions were.

As with statutory damages, for a plaintiff to be eligible to be awarded its reasonable attorneys’ fees, the plaintiff must have applied for a copyright registration prior to infringement or within the earlier of three months of publication or one month of learning of the infringement.

[Sources: 17 U.S.C. §§ 412, 505; Rearden, LLC v. Walt Disney Pictures, 152 F.4th 1058 (9th Cir. 2025); Jarvis v. K2 Inc., 486 F.3d 526 (9th Cir. 2007).]

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