• What is copyright infringement?

    Copyright infringement is a violation of one or more of the protected rights. To make out a claim of copyright infringement, a claimant must prove:

    (1) the existence of a valid copyright,
    (2) copying-in-fact, and
    (3) violation of one of the protected rights.

    The existence of a valid copyright is established by either proof of being the author of an original work fixed in a tangible medium of expression, or is established prima facie by having registered the allegedly infringed work. Proving copying-in-fact requires a showing that the alleged infringer actually copied the protected work. Proof of a violation of a protected right is determined on a number of different factors depending on the nature of the protected work, the nature of the infringing work, and the right or rights allegedly violated.


    Copying-in-fact is required to show that there is infringement at all. If the defendant did not copy the protected work in fact, then the allegedly offending work is an independent creation and not an infringement. Copying-in-fact can be shown by either direct or circumstantial evidence. Direct evidence is typically shown either by the defendant admitting that they copied the work, which happens frequently, or by showing there was an exact copy. Circumstantial proof is established by showing evidence that the defendant had access to the protected work and that the two works are substantially similar.

    Proof of access requires showing the defendant had a reasonable opportunity to view or copy the work, which can be shown by wide dissemination of the protected work, or by a particular chain of events leading to a link between the defendant and the protected work. Substantial similarity is a subjective test comparing the two works to see if there are sufficient similarities to rule out coincidence or the possibility that both works were copies of a another work. The similarities must be more than trite, common, or necessary similarities. A necessary similarity is where the function of an object plays a role in its appearance, such as a table having legs. More proof of one element of this test means that lesser proof of the other is required.

    Violation of a Protected Right

    Proof of a violation of a protected right is predicated on the nature of the protected work, the nature of the infringing work, and the right or rights allegedly violated.

    Proof of violating the reproduction or derivative work rights requires a showing that the defendant either made an exact copy, or copied too much as a matter of improper appropriation. An exact copy is a per se violation. Where the copying is an improper appropriation, courts use a variety of tests for works in different mediums and formats, but largely look for similarities in the ideas and expression. These similarities are analyzed through the lenses of both an objective look at the individual copyrightable elements, and a subjective look at their total look and feel. Again, the specifics of what the court will consider are heavily fact dependent and will turn on the specific case before them.

    Proof of violation of the display, performance, and distribution rights is also highly dependent on the facts before the court. Establishing violations of these rights are less subjective, but the determination still relies heavily on the combination of facts in any given case. Generally speaking, a violation of the performance or display rights will be found in whether there was a public audience, and whether the performance falls under an exception. A violation of the distribution right is usually found in actual dissemination of the protected work.
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