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Defenses to Copyright Infringement

Subject to certain limitations, a valid owner of a copyright has the exclusive right to sell, copy, or otherwise reproduce and distribute their work.17 U.S.C. § 106. It is copyright infringement if anyone but the owner of the copyright does any of the above without permission. However, there are several copyright defenses that may apply.

A. Fair Use

The “fair use” doctrine is the primary defense to copyright infringement. 17 U.S.C. § 107. Specifically, “fair use” allows others to reproduce a work without permission for limited purposes such as criticism, news reporting, teaching, comments, and research. Fair use allows others to use a copyrighted work “in a reasonable manner without the owner’s consent.” Hustler Magazine, Inc, 796 F. 2d 1148 (9th Cir. 1986).

In order to determine whether the use was fair, a court will consider and balance the following factors:

1) the purpose and character of the use by the defendant (commentary and parodies may be allowed);
2) the nature of the copyrighted work (reproductions made for commercial reasons are less protectable);
3) the amount and substantiality of the portion of the work used in relation to the work as a whole (one may not copy the “heart” of the work); and
4) the effect of the use on the value of the original work (the copying of the original work cannot cause harm to the original author). 17 U.S.C. § 107.

Although this test is provided in the Copyright Act, courts can weigh each factor differently, leading to potentially different results depending on where the lawsuit is filed. Examples likely qualifying as fair use include distributing copies of a section of an article in class for educational purposes, providing a quotation in a film or play review, and imitating a work through a parody.

B. Invalid Copyright

If the original copyright is invalid, the plaintiff cannot succeed on a copyright infringement claim. A defendant may argue that the copyright was never valid because it was not an original piece of work (e.g., just a copy of a preexisting work), the plaintiff is not the original author of the work (e.g., the work was created by an independent contractor), or it lacked copyrightable subject matter (e.g., it protects an idea or process).

Further, an alleged infringer can argue that the copyright was not properly registered and thus federal courts lack jurisdiction to hear the claim.

C. Statute of Limitations

The statute of limitations for a copyright infringement lawsuit begins to accrue whenever the owner knows or should of known of the alleged infringement. Once that clock starts, the owner has three years to bring civil action and five years to press criminal charges. If it takes longer than three or five years to file the complaint and begin the lawsuit proceedings, the plaintiff is barred from recovering damages.

D. Independent Creations

If the alleged infringer can show that the allegedly infringing work was independently created and thus, was not copied, then it has a complete defense to copyright infringement.

E. Licensed Use

Similarly, if the alleged infringer can prove it has a license (or permission) to use the copyrighted work, no infringement has occurred.

E. Abandonment

Finally, abandonment of a copyright is a defense to infringement. A copyright holder abandons its copyright if it demonstrates intent to surrender its rights in the copyrighted work. Non-use alone is insufficient to demonstrate abandonment. However, failure to enforce a copyright against known infringers for a long period of time may show intent.

If you need assistance because you are facing a copyright infringement lawsuit or believe someone is infringing on your copyrighted works, call Roland Tong, at 949-298-6867 or email Mr. Tong at [email protected].