Details on Standards of Copyright Law and Copyright Infringement
Copyright Registration Under the Law
Many people misunderstand the nature of securing copyright protection. Copyright in an original work of authorship, and all the associated rights and protections, typically accrue to the author who created the work as soon as the author fixes the work in a tangible medium of expression for the first time. Ownership is automatic and does not require registration, giving notice, or even publication. However, registering a copyright is recommended and can be a good idea from a practical standpoint for purposes of having a public record of when the work was definitely fixed in a tangible medium.
Copyright itself is automatic, but registration is important for enforcement.
If you want to sue for copyright infringement to enforce any of the rights that copyright law gives authors, it is necessary to register the copyright. When copyright registration happens within five years of publication, it creates a presumption of validity in court. Some common legal defenses to a copyright infringement suit include that the infringer had no reason to know the work was protected by copyright or that the infringing work was independently created, rather than copied. When a copyright is timely registered, these defenses are less likely to be successful.
How to Obtain Copyright Protection in Other Countries
With the rise of the internet, which allows work to be easily disseminated globally, many authors may be wondering how to protect their copyright in foreign countries. Two treaties cover foreign copyright protection: the General Agreement on Tariffs and Trade (GATT) and the Berne Convention. More than 100 industrialized countries, including the United States, have signed the Berne Convention, an international copyright treaty.
Under the Berne Convention, members must give copyright protection to authors who are nationals of a member country. Protection under the Convention is automatic, just as it is in the United States, and the author need not take legal steps to preserve copyright. Like the Berne Convention, GATT includes several provisions that affect copyright protection.
What rights do I have in unpublished cartoons?
Once you have fixed the cartoons in a tangible medium, copyright protection applies even if you have not registered a copyright. In other words, you have rights as soon as you sketch the cartoons on paper or on your computer. However, you may want to take the additional precaution of formally registering your copyright with the U.S. Copyright Office. This can help you take action against someone who steals your cartoons or otherwise infringes on your copyright. Eventually, you can put a copyright notice on published copies of your cartoons, which will defeat any defense of accidental infringement.
Copyright infringement is the use of works protected by copyright without permission for usage where such permission is required, thereby infringing certain exclusive rights granted to the copyright holder, such as the right to reproduce, distribute, display or perform the protected work, or to produce derivative works. The copyright holder is usually the work's creator, or a publisher or other business to whom copyright has been assigned. Copyright holders routinely invoke legal and technological measures to prevent and penalize copyright infringement.
Copyright infringement disputes are usually resolved through direct negotiation, a notice and take down process, or litigation in civil court. Egregious or large-scale commercial infringement, especially when it involves counterfeiting, or the fraudulent imitation of a product or brand, is sometimes prosecuted via the criminal justice system.
In copyright law, infringement does not refer to theft of physical objects that take away the owner's possession, but an instance where a person exercises one of the exclusive rights of the copyright holder without authorization.
Most countries extend copyright protections to authors of works. In countries with copyright legislation, enforcement of copyright is generally the responsibility of the copyright holder. However, in several jurisdictions there are also criminal penalties for copyright infringement...
Copyright infringement in civil law is any violation of the exclusive rights of the owner. In US law, these rights include reproduction, preparation of derivative works, distribution of copies by sale or rental, and public performances or displays.
Copyright Infringement & Related Lawsuits
When any of the exclusive rights of copyright are exploited without a copyright owner's permission, copyright infringement has occurred. There are two types of infringement: primary and secondary.
A primary infringement involves a direct infringement by the defendant. Secondary infringement happens if someone facilitates another person or group in infringing on a copyright.
There are two types of secondary infringement, contributory and vicarious infringement, neither of which is expressly prohibited under the Copyright Act, but which have arisen as prohibitions under case law. Somebody who knowingly induces, causes, or materially contributes to copyright infringement can be held liable as a contributory infringer if he or she knew or had reason to know of the infringement. Courts will determine whether a person or organization is vicariously liable to see whether the superior party (such as an employer) profited from the infringement of the primary or direct infringer and had supervisory authority over the direct infringer.
To enforce a copyright, a copyright holder typically sends a cease and desist letter to the person or entity exploiting an exclusive right. In some cases, multiple cease and desist letters are sent. However, if correspondence fails, the copyright holder may sue in federal district court to enforce his or her rights. When a copyright is registered with the Copyright Office, the infringer may have to pay the copyright holder statutory damages and possibly attorneys' fees. An infringer will also be prohibited from continuing to use the work.
What Does a Plaintiff Have to Prove in a Copyright Infringement Lawsuit?
When a plaintiff brings a copyright infringement lawsuit for primary infringement, he or she must prove copyright ownership and that the defendant copied or otherwise violated his or her rights in original aspects of the copyrighted work.
Often, proof of copying is accomplished through circumstantial evidence when a plaintiff demonstrates that the defendant had access to the original work and that there is a substantial similarity between both works. Courts determine substantial similarity by looking for similarities between the two works, including their formats, appearance, sound or words, and sequence. While owners do not need to put a notice on their work or register it with the Copyright Office, taking these steps in a timely fashion makes it easier to establish a copyright infringement case later.
Standards to determine Copyright Infringement in the United States of America and Australia:
1. Is there substantial similarity between the two works, measurable by specific criteria such as dialogue, plot, character development, OR (note that they specify 'or' and not 'and') visual composition? Has a whole or 'substantial' part of the copyrighted work been used ('substantial' refers to quality rather than quantity - even a small but important/distinctive element can qualify as such)?
2. Did the defendant have reasonable opportunity to have a connection to, view, or encounter the original copyright-protected work before creating the potential infringing work (does not require definitive proof of defendant having seen it, only that it was possible - works published online count for this requirement)?
3. Is there an objective similarity between them? Does, or would, a lay observer recognize the infringing work as a copy, or at least as substantially similar, to the original copyright-protected work?
Common defenses attorneys may raise are:
The copyright license has expired:
⤷ Work that was created and fixed on or after January 1, 1978 is protected for a term of the author’s life plus 70 years.
Your infringement is permitted under the doctrine of fair use.
You had a license to use the work from the copyright owner.
You had no reason to know the work was protected by copyright; or, You created your work independently without copying.
⤷ When copyright registration happens within five years of publication, it creates a presumption of validity in court. Some common legal defenses to a copyright infringement suit include that the infringer had no reason to know the work was protected by copyright or that the infringing work was independently created, rather than copied. When a copyright is timely registered, these defenses are less likely to be successful.
Article 10 of the Berne Convention mandates that national laws provide for limitations to copyright, so that copyright protection does not extend to certain kinds of uses that fall under what the treaty calls "fair practice", including but not limited to minimal quotations used in journalism and education. The laws implementing these limitations and exceptions for uses that would otherwise be infringing broadly fall into the categories of either fair use or fair dealing. In common law systems, these fair practice statutes typically enshrine principles underlying many earlier judicial precedents, and are considered essential to freedom of speech.
Another example is the practice of compulsory licensing, which is where the law forbids copyright owners from denying a license for certain uses of certain kinds of works, such as compilations and live performances of music. Compulsory licensing laws generally say that for certain uses of certain works, no infringement occurs as long as a royalty, at a rate determined by law rather than private negotiation, is paid to the copyright owner or representative copyright collective. Some fair dealing laws, such as Canada's, include similar royalty requirements.
Non-infringing types of works
In order to qualify for protection, a work must be an expression with a degree of originality, and it must be in a fixed medium, such as written down on paper or recorded digitally. The idea itself is not protected. That is, a copy of someone else's original idea is not infringing unless it copies that person's unique, tangible expression of the idea. Some of these limitations, especially regarding what qualifies as original, are embodied only in case law (judicial precedent), rather than in statutes.
In the United States, for example, copyright case law contains a substantial similarity requirement to determine whether the work was copied. Likewise, courts may require computer software to pass an Abstraction-Filtration-Comparison test (AFC Test) to determine if it is too abstract to qualify for protection, or too dissimilar to an original work to be considered infringing. Software-related case law has also clarified that the amount of R&D, effort and expense put into a work's creation does not affect copyright protection.
Evaluation of alleged copyright infringement in a court of law may be substantial; the time and costs required to apply these tests vary based on the size and complexity of the copyrighted material. Furthermore, there is no standard or universally accepted test; some courts have rejected the AFC Test, for example, in favor of narrower criteria.
Fair Use Defense to Copyright Infringement Lawsuits
Copyright law grants a bundle of six exclusive rights to the holder of the copyright, including the right to reproduce a work in copies or phonorecords. These rights are limited in several ways, including by the doctrine of fair use, which serves as a defense in a copyright infringement lawsuit. The doctrine is codified in Section 107 of the Copyright Act, which lists various types of reproduction that the law considers fair. Typically, fair uses include criticism, comment, research, scholarship, news reporting, and teaching. However, whether or not a particular use is a fair use or an infringement is not always clear.
There are four factors that have to be considered when deciding if a particular use is protected by the fair use doctrine:
The purpose and character of the use;
⤷ Consideration on whether what was taken has been taken for a commercial or non-profit educational purpose. If taken for a mostly non-profit educational purpose, this factor balances in fair use’s favor. On the other hand, if for mostly commercial purposes, this factor will weigh against fair use.
⤷ Has what’s been taken been transformed (meaning added something new and is not a substitute for the original use of the work) by adding expression, aesthetics, insights, and meaning that were not in the original work, such as with parodies that are meant to criticize or poke fun at the original meaning? If the addition does not significantly change the meaning of the expression in the original work, then this alteration is not significant enough to justify copying. Copying must be transformative for this factor of purpose and character of use to work in fair use’s favor.
The nature of the work being used;
⤷ In general, if an original work of authorship is factual or informational, there is more leeway to copy than there is if it is fictional or expressive. This is partly because the dissemination of facts is considered in the public interest.
The amount and substantiality of the part that is used in relation to the copyrighted work as a whole
⤷ The more of an original work is taken, the less likely the use of the material will be considered fair. The part that was taken will also be considered. If the most memorable or integral aspect of the work was taken, this factor is less likely to be in your favor. When creating a parody or critique of the meaning of an original work, more would probably be permitted to be taken because the audience will not understand the parody as a critique of the original work unless you conjured up the original work.
The effect of the use on the potential market for the original work of authorship
⤷ The final fair use factor is also critical. If your work deprives a copyright holder of income or reduces an existing or potential market for an original work, it is likely this factor will be decided against fair use. Courts are clear that even if the defendant had, by copying, created a work that the original author would never have created, if their work adversely affects a potential market, this factor weighs against them. As with the other factors, a parody that takes from an original work of authorship in order to critique it or make fun of it is handled differently. The issue is whether the parody fulfills the demand for the original or whether it simply causes a loss of income to the original author because it successfully critiques his or her work and makes it hard for an audience to take the original work seriously again.
Relying on the fair use defense is always risky. Courts have interpreted these factors differently, and there are subjective judgments involved. Therefore, it can be difficult to predict how a court will rule when a defendant asserts fair use as a defense in a copyright infringement suit, even though this area is heavily litigated and the case law is well developed. In general, parodies that copy original work in order to criticize, attack, or make fun of it are given greater leeway under the fair use doctrine than any appropriation that is interpreted alongside the original work.
Transformative Use and Copyright Infringement Lawsuits
One of the most important questions in applying the fair use doctrine is whether the alleged infringer’s use of the copyrighted work was transformative. This means that the new work has significantly changed the appearance or nature of the copyrighted work. If the use is transformative, this does not necessarily mean that a fair use defense will succeed, but it will weigh heavily in favor of the defendant in an infringement lawsuit.
Examples of Failing the Transformative Use Test
While parodies are transformative, satires often are not. For example, a federal court ruled that the transformative use doctrine did not apply to an imitation of a Dr. Seuss book that told the story of the O.J. Simpson murder trial. This was because the book simply borrowed the original characters and style for commercial use and did not parody the original work.
Even if the use is slightly transformative, this may not be enough to pass the test, and it probably will not support a fair use defense. Especially if the transformative nature of the offending piece does not outweigh the substantial amount of copying that occurred.
Enforcement of Copyrights Through Lawsuits & Criminal Charges
If somebody infringes your copyright, you are entitled to file a lawsuit in federal court to enforce your rights. Remedies include obtaining an injunction or restraining order to prevent additional violations, an award of money damages, and possibly attorneys’ fees. The court can also order while an action is pending that any copies that are alleged to be in violation of the copyright owner’s exclusive rights, as well as templates for reproduction and records, be impounded. When making its final orders, the court can order the destruction or disposition of all the infringing copies that violated the copyright owner’s exclusive rights, as well as the templates for reproduction.
Generally, if a person has a good reason to believe that he or she is not infringing, the damages that the person will have to pay as an innocent infringer may be nominal. The court will also order the innocent infringer to stop infringing.
Criminal Prosecution for Copyright Infringement
In some cases, a copyright infringement is not only a matter of civil litigation, but also a criminal misdemeanor or felony. The U.S. Department of Justice enforces this aspect of copyright law through criminal prosecution. Under Section 506 of the Copyright Law, anybody who willfully infringes a copyright can be criminally prosecuted if the infringement was committed for commercial advantage of financial gain, by reproducing or distributing a copyright work during a 180-day period of one or more copies or phonorecords that retail for over $1,000, or by distributing work that was being prepared for commercial distribution by making it available on a computer network that the public can access when the person knew it was intended for commercial distribution. Among other penalties, forfeiture, destruction, and restitution may be ordered.
Copyright Infringement Damages
A copyright holder can recover actual damages and the infringer's profits if he or she successfully proves copyright infringement. Actual damages are measured by the "lost market value" at the time of infringement. When establishing profits, the copyright owner must prove the infringer's gross revenue, and the infringer must prove deductible expenses and elements of profit that can be attributed to factors other than the original work of authorship. A copyright owner can elect before judgment to recover statutory damages for all infringements in an amount between $750 and $30,000 as the court considers fair.
If the work was registered with the Copyright Office within three months of the work's publication or before the infringement, the owner can recover statutory damages and attorneys' fees without proving actual damages. Statutory damages, rather than actual damages, must be awarded when an infringer had reasonable grounds for believing their work falls under the fair use doctrine if the infringer is an employee or agent of a non-profit educational institution or library that infringes within the scope of employment by reproducing the work, or the infringer is a public broadcasting entity that infringes by performing or reproducing a non-dramatic literary work.
Criminal penalties are available when infringement is "willful." If the court finds that the infringement was willful, the court can increase the statutory damages award to a sum of up to $150,000. However, when an infringer did not have reason to believe his or her use was infringing, the court also has the discretion to reduce damages to no less than $200.
Legal remedies for infringement:
US: Impounding/Disposition of Infringing Articles
⤷ At any time while an action under this title is pending, the court may order the impounding of the infringing material, on such terms that it may deem reasonable:
⤷ All copies/records claimed to have been made or used in violation of the exclusive right of the copyright owner
⤷ All tapes, films, or other articles by which copies of such can be reproduced
⤷ Records documenting the manufacture, sale, or receipt of things involved in such violation, provided that any records seized shall be taken into the custody of the court
⤷ If a court rules that a defendant’s work is copyright infringement on the plaintiff’s work, they may, as part of their final judgement/decree, order the destruction or other reasonable disposition of ALL copies/records found to have been made or used in violation of the copyright owner’s exclusive rights, including master files, tapes, film/video sources, or other articles by means of which such copied or records could be reproduced.
AUS: Remedies and Offences
⤷ The owner of the copyright in a work or other subject‑matter may bring an action for conversion or detention in relation to. Any relief granted by a court in an action for conversion or detention is in addition to any relief that the court may otherwise grant.
⤷ Destruction or delivery up of infringing copies:
If a person is charged before a court with an infringing offense, the court may order that infringing articles be destroyed, be delivered up to the owner of the copyright concerned, or else otherwise dealt with as the court thinks fit.
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Additional notes on copyright infringement in America, as laid out by an IP focused law firm in New York:
Offenders can still face liability for copyright infringement if overall sequence, structure, and expression are substantially similar, regardless of if they have changed names, settings, or minor details.
Fair use only applies if IP is used for criticism, commentary, news reporting, teaching, scholarship, or parody. 4 factors are taken into consideration for potential fair use cases: The purpose and character of the use, the nature of the copyrighted work and offending work, the amount and substantiality of the portion used, and the effect on market or value of the original work.
Transformative works, which alone do not guarantee fair use, are not viewed positively in a legal sense if the offender has copied the heart of the original work or their most valuable/distinctive portions, regardless of what else may have been changed.
There may be leniency in 'good faith' cases where the offender believed they were practicing 'fair use'. However, willfulness is a critical distinction in IP law for the courts, so if they were made aware of the copyright issue and continued to recklessly disregard the rights of the copyright holder, than that argument of 'good faith' flies right out the window.
Copyright infringement focuses on two aspects of damages done - actual damages, and statutory damages. While actual damages are the actual profits lost plus the profits gained by the offender, statutory damages are granted solely on the fact that the copyright infringement happened at all, and according to the website mentioned, can range anywhere from $750 to $30,000 per work infringed, or even up to $150,000 per work if the infringement was knowing and willful, even if no actual market harm was done to the original copyright holder. Unless they're able to prove that they sought legal counsel once the issue was brought to their attention, that falls under suggested insufficient care in holding up copyright law.
The government website for the Australian copyright standards, which is where I got the above, also includes the following 'common misconceptions' on copyright infringement:
“I changed it by 10%, so it’s not infringement.” There is no percentage rule. Even small portions can infringe if they are an important or distinctive part of the original work.
“I gave credit to the creator.” Attribution does not prevent infringement.
“It was only for personal use.” Personal use is not a general exception to copyright infringement in Australia, though specific exceptions may apply.
“I found it online, so it’s free to use.” Works found online are still protected by copyright law unless it is in the public domain or under an open license.
[Copyright Research Sources]
