Information on Copyright Law, Copyright Infringement, and Copyright Defense

[About the author: Scott Lesowitz is a Harvard Law School graduate and former Assistant United States Attorney based in Los Angeles, California. His e-mail address is scott@lawbylg.com, and his phone number is 323-452-9909.]

This page provides an overview of copyright law and copyright infringement litigation. This page includes sections on what types of materials may receive copyright protection, the scope of protections provided to copyright holders, what must be proved in a copyright infringement court case, and what remedies and money damages a copyright plaintiff may receive in litigation.

What Materials May Receive Copyright Protection

The types of materials that may receive copyright protection is broad. Nearly all “original works of authorship fixed in any tangible medium of expression” could potentially receive copyright protection. The work of authorship can be expressed on paper, a computer, a phone, even a slab of concrete. Works do not have to have artistic merit to receive copyright. While of course books may receive copyright protection, so may webpages, computer programs, and videogames. The Copyright Act provides a non-exhaustive list of works that may be copyrighted, which includes literary works, musical works, song lyrics, dramatic works, choreographic works, pictorial, graphic, and sculptural works, motion pictures, audiovisual works, sound recordings, and architectural works. 17 U.S.C. § 102.

An author automatically receives copyright protection in a work at the time he or she creates it. Formal copyright registration is not required. However, as discussed more below, completing the registration process is important for copyright enforcement.

If there are joint authors of a work, the general rule is that they have equal ownership of the work. Generally, each of the authors may grant permission to others to use the work so long as he or she shares any proceeds with the co-author appropriately. Generally, when an employee creates a work in the scope of employment the employer owns the copyrights. However, it can at times not be an easy answer. There can be questions about whether someone is an employee or contractor, the nature of the commission, whether a work was made within the scope of employment, and so on. Therefore, it is important that whenever an author collaborates with others or assigns creative work to an employee or contractor that he or she enters contracts that define each person’s rights and ownership interests.

One of the biggest issues in copyright law is that copyright law does not protect facts, ideas, or methods of operation. These may be protected by other areas of intellectual property, such as trade secret law (https://lesolaw.com/trade-secret-overview/).

Instead, copyright law protects creative expression. However, the level of originality and creativity required is only “minimal.” For example, while facts themselves may not be copyrighted, a sufficiently original arrangement of facts may receive copyright protection. See Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340 (1991). Neither a court nor the United States Copyright Office will analyze whether a work is good or not.

In practice, it is often murky whether something constitutes a fact, idea, or standard plot device that may not be copyrighted or whether it constitutes an original expression that may receive copyright protection. For example, one court found no copyright infringement in a case related to two reality television shows that had highly similar premises, rules, and presentation styles. Milano v. NBC Universal, Inc., 584 F.Supp.2d 1288 (C.D. Cal. 2008). However, in another case, a court upheld a finding of copyright infringement related to two fictional television shows (only one of which was developed and produced) that had many of the same story elements, but where there was no literal copying of dialogue. Metcalf v. Bocho, 294 F.3d 1069 (9th Cir. 2002).

The difficulty in distinguishing between facts and methods of operation (which may not be copyrighted) and original expression (which may be copyrighted), can especially be seen in source code and computer programs that perform practical functions. The copyright protections that source code, practical computer programs, and smartphone applications receive tends to be thin. For example, a court found that a competitor to the formerly dominant Lotus 1-2-3 spreadsheet program did not commit copyright infringement when it copied the intricate menu and submenu structure of the Lotus-1-2-3 spreadsheet system but did not copy the program’s source code verbatim. Lotus Development Corp. v. Borland Intern., Inc., 49 F.3d 807 (1st Cir. 1995).

Clothing presents an interesting example of the difficulty in differentiating between useful articles that may not be copyrighted and creative expression that may be copyrighted. Generally, no utilitarian aspect of clothing may receive copyright protection, no matter how innovative or creative it is. However, one may receive copyright protection of original color patterns applied to the clothing and non-useful decorative features of the clothing. However, they must be able to be depicted in another medium in a manner that would warrant copyright protection in that other medium. Star Athletica, LLC v. Varsity Brands, Inc., 137 S. Ct. 1002 (2017).

An Overview of the Rights Provided to Copyright Owners

The owner of a copyright generally has the exclusive rights to do any of the following with the work: 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). 17 U.S.C. § 106.

Generally, one who purchases a copy of a copyrighted work may then transfer that original copy without permission. There would only be infringement if the purchaser made a new copy and then transferred that new copy. However, 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. 17 U.S.C. § 107. 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. 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. Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005).

Taking a visual work and making a copy of it in a new medium, for example selling a t-shirt of a painting, will generally constitute infringement. 17 U.S.C. § 113.

An Overview of Copyright Infringement Litigation

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 there to be 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 in order to avoid liability for infringement.

While the plaintiff must prove that an act of copying took place, copyright infringement is otherwise a strict liability tort. Therefore, 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. BWP Media USA, Inc. v. Clarity Digital Group, LLC, 820 F.3d 1175 (10th Cir. 2016).

I practice in California, which is within the Ninth Circuit Court of Appeals. Courts in the Ninth Circuit have a unique process in determining whether there is substantial similarity. Courts look at the two 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. Skidmore v. Led Zeppelin, 952 F.3d 1051, 1064 (9th Cir. 2020) (en banc).

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. Courts are split over whether the plaintiff is required to provide less proof of substantial similarity between the two works when the defendant had a higher degree of access to the plaintiff’s work as opposed to a lower degree of access. The Ninth Circuit has now rejected this so-called “inverse ratio rule” and found that a “high degree” of access does not allow the plaintiff to provide a lesser showing of substantial similarity. Skidmore v. Led Zeppelin, 952 F.3d 1051, 1066 (9th Cir. 2020) (en banc).

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. Furthermore, if the application is submitted correctly, and the Copyright Office denies the application for a substantive reason, the applicant may still file a lawsuit for copyright infringement. See Fourth Estate Public Benefit Corporation v. Wall-Street.com, LLC, 139 S.Ct. 881 (2019). However, certain remedies are only available if an ultimately successful application for copyright registration is submitted prior to the infringement or within the earlier of 3 months of publication or 1 month after learning of the infringement. 17 U.S.C. § 412.

Monetary Damages and Injunctions 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. If the judge issues a preliminary injunction, generally this will usually be a court order barring the defendant from using, displaying, or transferring the plaintiff’s allegedly copyrighted work until after trial. As it can take a long time for a case to get to trial, and since trials are expensive, 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 defendant profited from the infringement (disgorgement). 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, although this is not always the case.

Damages from copyright infringement are often 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. Jarvis v. K2 Inc., 486 F.3d 526 (9th Cir. 2007).

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. 17 U.S.C. § 504(c). 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. 17 U.S.C. § 412.

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. 17 U.S.C. § 505. In deciding whether to award the prevailing party attorneys’ fees, courts give “substantial weight” to the reasonableness of the losing party’s litigation position but also take into account “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.

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.

[About the author: Scott Lesowitz is a Harvard Law School graduate and former Assistant United States Attorney based in Los Angeles, California. His e-mail address is scott@lawbylg.com  and his phone number is 323-452-9909. This page is for educational purposes only. No legal advice or assistance are given.]