exclusive rights
which, subject to some limitations, cannot be exercised by anybody else without
the copyright owner’s permission. Generally, when someone other than the copyright owner
exercises any of the these rights without permission, the copyright has been
infringed or violated. According to
section 501
of the Copyright Act: "Anyone who violates any of the exclusive rights of the
copyright owner as provided by
sections 106
through 122 or
of the author as provided in
section 106(a),
or who imports copies or phonorecords into the United States in violation of
section 602,
is an infringer of the copyright or right of the author, as the case may be."
Consequently, copyright infringement can occur when copyrighted works such as movies,
music, books, paintings, and computer software are reproduced or distributed
(including digital distribution over the Internet) without permission from the
copyright owner. Infringement can also occur when certain copyrighted works
(movies, plays, music, etc.) are publicly performed or when other types of works
(paintings, sculpture, photographs, etc.) are publicly displayed without
permission.
It is important to understand that not all copying from copyrighted works
constitutes infringement. Some parts of copyrighted works can be copied legally
without the copyright owner's permission. For instance, ideas contained in a
copyrighted work can be copied since ideas are not protected by copyright.
However, the line between permissible copying and copyright infringement is not
always clear.
Infringement is the intellectual property equivalent of
stealing physical property (although not exactly the same) and as we all know (hopefully at least), it is wrong
to steal. Sometimes the term "piracy" is used to describe copyright infringement,
usually in the context of mass distribution of copyrighted works for profit.
However, copyright infringement does not require mass distribution (a single
unauthorized use is an infringement) and does not require any profit by the
infringer (giving away a copyrighted work without permission may be
infringement).
A copyright infringement suit can be filed by any copyright owner of a work.
If a work is owned by more than one party (as is very common in the music
publishing industry for example), it is not required that all co-owners join in
the suit. When an author has
transferred copyright to a publisher, usually the publisher will be responsible
for pursuing infringement claims.
Since copyright
law is primarily
civil
law rather
than criminal law, if a
copyright owner believes their work is being
infringed, it is up to them to decide whether and to
what extent to enforce their rights.
Criminal
copyright infringement prosecutions
(where the government takes legal action against an
infringer) are fairly rare. Some organizations representing copyright owners enforce copyrights
on a collective rather than individual basis. For example, in the recent
lawsuits filed by the Recording Industry Association of America (RIAA) against
individual file sharers, the RIAA is suing on behalf of the various record
companies it represents. Similarly, the Motion Picture Association of America (MPAA)
sometimes files copyright infringement lawsuits on behalf of its members and the
music performing rights organizations (ASCAP and
BMI in the U.S.) file copyright
infringement lawsuits on behalf of the songwriters and music publishers they
represent. If it weren't for this type of collective enforcement, many copyright
infringements would not be legally pursued since the cost of bringing suit as an
individual copyright owner often outweigh the benefits.
Since copyright law in the United States is exclusively federal in nature, a
copyright owner must file a copyright infringement lawsuit in federal rather
than state court. According to the United States Code (28
U.S.C. § 1338), federal courts have exclusive
jurisdiction over any actions
involving rights under federal copyright law. However, disputes
over copyright ownership and payment of royalties are often brought in state court
since these types of disputes often involve contractual rights rather than
rights under copyright law. The question then becomes which federal court? The
answer to that question depends on what court or courts have jurisdiction over
the party being sued. For example, if you want to sue someone for copyright
infringement who lives in Los Angeles, you could file the lawsuit in the federal
district court located in Los Angeles. Depending on the nature of the allegedly
infringing action, you might be able to file the lawsuit in other federal
district courts as well. For instance, if you want to sue a business based in
California for copyright infringement and the business sold allegedly infringing
goods in Tennessee, both the California and Tennessee federal courts would
probably have jurisdiction.
First, you must prove that you actually own a valid copyright in the work
you claim has been infringed. The best way to do this is to present a copyright
registration certificate in court. If the registration was made within five
years of the work’s first publication, the court will presume that the plaintiff
owns a valid copyright and that all of the information contained in the
registration application is true.
17 U.S.C. §410(c)
The
burden
of proof then shifts to the
defendant
to prove otherwise which will normally be very hard to do.
If you haven't registered a work within five years of its initial
publication, you may have to offer some other evidence of your ownership claim.
At worst, you could testify under
oath as to when and how you acquired ownership
or when and how you created the work. If you acquired ownership of a copyright
through an assignment of copyright, you would probably have to present the
copyright assignment or other contract under which the copyright was transferred
(since oral transfers of copyright are not allowed, its very important that you
keep copies of all documents by which you acquire copyright ownership).
You must prove that the alleged infringer had access to your work. Access
means that the person you're accusing of infringement had a reasonable
opportunity to see or hear your work. This is a logical requirement since
someone cannot possibly copy from a work they did not have access to. Access can
be proven by direct or
circumstantial evidence. Direct evidence of access can
occur when an alleged infringer admits seeing or hearing your work. However,
admitting access does not mean that someone admits infringement.
Since direct evidence of access is not commonly
available, copyright owners often have to rely on circumstantial
evidence of access (evidence tending to show that the
alleged infringer had access). For example, a copyright
owner could offer evidence that his or her work was widely available to
the public. The more widely available a work is, the more
likely access will be found.
Example: Circumstantial evidence of access
might involve showing that a song has received a great
amount of exposure to the public such as through
nationwide radio airplay or that a book was very
popular and widely available as indicated by it being
on the New York Times Best Sellers list
A copyright owner could also offer circumstantial
evidence of access by showing that his or her work
was available to the alleged infringer. For
instance, if screenplay writer could offer evidence
that she had submitted her screenplay to a movie
studio and the studio had read it, this would be
circumstantial evidence of access. By the way, this
is one of the main reasons why it is so hard to get
studios to read screenplays (or record companies to
listen to artists' demo recordings).
In
Selle v. Gibb, 741 F.2d 896 (1984), composer Ronald Selle sued the
Bee Gees alleging
that his song Let It End was infringed by the Bee
Gee's How
Deep Is Your Love. Although the songs were at least somewhat similar,
Selle could not prove access since his song was never
publicly released. The Bee Gees were also able to offer evidence
showing that they independently created How Deep is Your Love. Both
songs can be heard and compared
here.
Like most highly popular songs, How Deep is Your Love has been covered by
a number of other artists over the years, including Korean hip-hop duo
Jinusean. Would this version be
considered a derivative work?
By refusing to
read or listen to unsolicited material, movie
studios and record companies can somewhat insulate
themselves from liability for copyright
infringement. Most studios and record companies have
very strict policies against accepting unsolicited
material (see an
example) and will usually return unsolicited
submission unopened with a form letter stating that
they do not accept unsolicited material.
Example:
A songwriter sued
Mariah Carey, claiming Carey’s hit song Herowas an infringement. The court held that there
was insufficient evidence of access since the
only evidence was the plaintiff''s
testimony that she mailed a tape of her song to
an executive at Sony Records (Carey's
record company). Sony offered evidence that they
did not receive or review the plaintiff's song
and had a
strict policy of refusing to review
unsolicited recordings. The court noted that if
access was found based on such evidence
"authors, producers, writers, and their
affiliated companies could, as here, be forced
to defend against baseless accusations of
misappropriating others’ work which they never
saw, heard, or solicited."
Dimmie v. Carey,
88 F. Supp.2d 142 (2000).
If you can prove ownership and access, you must then prove that the alleged infringer's
work is substantially similar to your work. Exactly how similar works have to be
to be substantially similar is up to a judge or jury to determine. However,
substantial similarity doesn't require that the works be identical. There are no
absolute amounts of similarity that constitute substantial similarity, but the greater the similarities, the more likely that
they will be considered substantial and therefore infringing. The key is that
the similarities must be substantial enough that they aren't likely to be
the result of coincidence.
Example: If you were to copy a song, note for note and word for
word, its extremely likely that this would constitute substantial
similarity. However, if you copied just a few notes and a few words, it
may or may not be substantial similarity. If those few notes and words
were very recognizable, a court might consider this to be substantial
similarity since courts consider the similarities from both a quantitative
and qualitative perspective.
A copyright owner must prove that the
similarities are so substantial that they could only have occurred due to copying rather
than coincidence. Some reasons for similarities between
works other than copying include the following:
Using of factual or commonly known information
Using common themes and plots
Using stock characters and stereotypes
Common Sources: Different authors might both use parts
of previously created works
Coincidence
Example:
In one of the most famous copyright infringement cases,
Bright Tunes Music Corp. v. Harrisongs Music, Ltd.), former BeatleGeorge Harrisonwas sued for copyright infringement in connection with his hit song My Sweet Lord.
Bright Tunes Music Corp. was a music publisher that owned the copyright to the
song
He's So Fine
which was composed by Ronald Mack in 1962 and recorded by the
The Chiffons. Harrison
admitted hearing
He's So Fine although he did not admit that he copied it.
The judge believed that
Harrison hadn't intended to copy and probably didn't realize he was
copying He's So Fine. However, based on the admitted access and
similarities between the songs, the judge ruled that Harrison
subconsciously infringed, stating that "[h]is subconscious knew it
already had worked in a song his conscious did not remember." You can
watch videos of both songs and you can also hear the songs and see a
comparison of the lyrics
here.
He's So Fine sung by The Chiffons
George Harrison performing My Sweet Lord
Analyzing similarities between works
is done on a case-by-case basis and often involves a
detailed analysis of the works. For instance, in an
infringement claim involving literary works, a court
will usually compare the wording, themes, plots,
characters, settings, moods, and writing styles of the
works.
Cases involving
infringement of music can be especially difficult due
to the relatively limited vocabulary for creating
music. Western music consists of the 12 notes of the
musical
scale.
Although these notes can be arranged in many ways,
musical composition conventions tend to dictate
certain patterns and songs can consequently have
elements in common, often due to coincidence rather
than copying. For infringement
claims involving music, courts will usually analyze
the works' melody, lyrics, chord progressions,
compositional style, and rhythm.
Example: In the
Mariah Carey case mentioned above (Dimmie v. Carey),
9 of 11 notes of D's chorus in the chorus of Mariah Carey's song were identical
to 9 notes in the plaintiff's song. However, although this might be considered
substantial similarity, the court believed that there wasn't sufficient evidence
indicated that Carey had copied the 9 notes from the plaintiff's song since it
was a musical progression common to pop and
R&B music..
Example: Movie Studio, 20th Century-Fox,
sued
Universal Studios
claiming that their TV series
Battlestar Galactica was a copyright infringement of the movie
Star Wars.
The
court's analysis of the similarities between the two
works included the following:
The central conflict of each story is a war
between the galaxy’s democratic and totalitarian
forces.
In Star Wars the young hero’s father had been a
leader of the democratic forces, and the present
leader of the democratic forces is a father figure
to the young hero. In Battlestar, the young hero’s
father is a leader of the democratic forces.
An entire planet, central to the existence of the
democratic forces, is destroyed in both stories.
The heroine in both stories is imprisoned by the
totalitarian forces.
A friendly robot, who aids the democratic forces,
is severely injured (Star Wars) or destroyed (Battlestar).
There is a scene in a cantina (Star Wars) or
casino (Battlestar), in which musical entertainment
is offered by bizarre, nonhuman creatures.
Despite these similarities, the court ruled that there was no infringement
since the similarities consisted mostly of common themes and stock characters.
If you offer sufficient evidence of ownership, access and substantial
similarity, the alleged infringer then has the opportunity to assert any
applicable defenses. For instance, an alleged infringer might claim that his
work was independently create rather than copied. Even if works are
substantially similar, one cannot be a copyright infringement unless it was
copied and many similarities are capable of occurring through sheer coincidence.
An alleged infringer might also assert that even if he copied from your work
that his use qualifies as fair use (see unit #8 for a discussion of the fair use
defense).
Copyright infringement of music can often be difficult to
determine since many similarities can be the result of coincidence rather than
copying. Many famous musicians have been sued for copyright infringement.
Some other interesting examples of copyright infringement can be found at
the Copyright Website which includes
photos, sound and video clips. Another great website is the
Columbia
Law Library Music Copyright Infringement Online Archive which lists many
copyright infringement cases involving music including links to the court
decisions and sheet music and sound clips.
Various parties can be liable (responsible) for
copyright infringement. Obviously, a person or company which actually commits an
infringing act will always be liable for the infringement. Someone who actually
commits an infringing act is known as a direct infringer. However, other parties
that contribute to or benefit from the infringement may also be liable in some
circumstances.
Contributory copyright infringement occurs when a party has knowledge of
infringing activity and induces, causes or materially contributes to the
infringing conduct of another. In other words, if a business has control over
its business operations and knows that infringing activity occurs when these
operations take place, continued tolerance of the infringing activity
contributes to the infringement, and the business may be liable for the
infringement as well as the direct infringer.
Example:A
bookstore (or record store) which sells copies of an infringing work may be
contributorily liable for infringement even though
someone else (e.g., the author) was the direct infringer.
In order to be liable as a contributory infringer, there are two
requirements:
You must have knowledge of the infringing activity.
You must substantially participate in the infringing activity.
Vicarious infringement occurs when a party has the right and ability to
control an infringer’s activity and receives a direct financial benefit from the
infringement. While contributory infringement requires knowledge of the
infringing activity, vicarious liability can be imposed regardless of the
alleged infringer's knowledge or intention ((although
as a "innocent infringer," the damages you are liable for would likely be
considerably less than the amount the direct infringer is liable for).
Although it may seem strange to impose liability on someone who is not even
aware of the infringement, vicarious liability is based in part on the third
party’s ability to supervise infringing conduct. In essence, everyone who has commercially
exploited an infringing work is potentially liable for the infringement.
Example: A movie studio which releases a movie containing an
infringing work (e.g., a song in the movie soundtrack, part of the script, etc.)
may be vicariously liable for the infringement even though the studio may not
have had any actual knowledge that the movie contained infringing material.
The concepts of contributory and vicarious infringement are very important in
the context of works distributed over the Internet. Since copyrighted works can
be very easily infringed in the online environment and since there are often
many direct infringers (for example, when copyrighted music is distributed by
people using file sharing software), it is not practical for copyright owners to
sue them all individually for infringement. Instead, copyright owners usually
prefer to sue the Internet Service Provider which provides Internet access and
other facilities which enable infringements to take place. However, if the
Internet service provider is not contributorily or vicariously liable for the
infringement (as one court has held in a situation involving file sharing),
copyright owners may have no choice but to sue direct infringers as the
Recording Industry Association of America has started doing.
Copyright infringement litigation can be very expensive & time
consuming. At the same time, many infringement claims (i.e., small scale infringements) are worth very little
and may not be worth resorting to litigation over. Additionally,
if a copyright owner fails to register a copyrighted work within 3 months of
the work's initial
publication or before an infringement occurs, the copyright
owner is limited as far as the legal remedies that may be pursued
(i.e., no right to statutory
damages or reimbursement of attorneys’ fees). Consequently,
it is often worth trying to resolve an infringement claim without
resorting to litigation.
Cease and Desist Letters
Before suing for copyright infringement, copyright owners (or
their attorneys) will usually send a "cease
and desist letter" to
the allegedly
infringing party demanding that they stop infringing. Sometimes,
cease and desist letters also demand that the infringer pay some
fee or royalty for their use of the work. If the claimed infringement involves
distribution of a copyrighted work over the Internet, a
copyright owner can send a special type of cease and desist
letter to an Internet Service Provider (ISP) demanding that the
infringing material be removed from the website it is hosted on.
Example: A sample cease and desist letter can be found
here
involving an alleged infringement by the owner of a website which posted various
Star Trek copyrighted materials. An online database of cease and desist letters
is available here
(some deal with trademark rather than copyright infringement although the format
is similar).
Copyright Infringement Settlements
After sending a cease and desist letter, it is sometimes possible to
reach a
settlement in connection with an infringement claim without
filing a copyright infringement lawsuit since some infringers, when caught, will want to resolve the
situation as quickly and inexpensively as possible. On the
other hand, some infringers will not cooperate no matter what
and if you are serious about enforcing your copyright, you will have to file suit
against them. Often filing a suit shows that you're serious and
some infringers are likely to consider settling at that point
rather than spend a considerable amount of money to defend an
infringement lawsuit. In addition to costing you money, a
copyright infringement lawsuit can take up a substantial amount
of your time and can sometimes result in negative publicity.
If an infringer agrees to settle an infringement claim, the
parties should sign a clearly drafted
settlement
agreement. It
is advisable to have an experienced attorney draft a settlement agreement to make sure
it is clear and legally enforceable. Often settlement
agreements make the infringing conduct legal by issuing a license
for the infringer's use in return for a fee and/or royalty.
Such a fee or royalty may be at a higher than normal rate to compensate
the copyright owner for the
inconvenience the infringer caused, to deter future
infringing conduct and to cover any attorney’s
fees you’ve incurred in pursuing the infringement claim.
A settlement agreement granting a license will also often
obligate the infringer to credit the author and copyright owner
of the work. Sometimes the copyright owner will not want the
infringer to continue using the copyrighted work and in such a
situation, the settlement agreement should clearly state this.
Sometimes someone accused of copyright infringement might
chose to settle the claim even if they believe they did not
infringe solely due to the costs involved in defending against
an infringement claim. For example, I represented a famous
recording artist who was sued by someone claiming one of the
artist's hit songs was an infringement. Although the artist
adamantly insisted that he had never heard this person's song
and hadn't copied it, he ultimately and reluctantly decided to
settle the claim paying a relatively small settlement fee. At
the time he agreed to settle, the matter had already lasted over
a year, the artist had incurred a fair amount of legal fees and
litigation costs, and
faced the prospect of spending a lot more to defend the lawsuit.
In addition to paying his own legal fees, the artist was also
obligated to reimburse his record company and music publishing
company which were also named as defendants in the lawsuit for
their legal fees. Even if he successfully defended the claim and
was awarded reimbursement of his costs, there was little
likelihood that he'd recover much since the person suing him
didn't have much money or assets. Sometimes, settling an
infringement claim is purely a business decision. However, large
entertainment companies and major artists, if they can't settle
very cheaply, will often defend infringement claims vigorously
since they don't want people to think they're an easy mark and
open the door to more infringement claims.
In 1983, pop-rocker
Huey Lewis
had a huge hit with his album Sports
which contained several hit singles including I Want a
New Drug.
Who Ya Gonna Call? Huey Lewis
apparently called his lawyer and in 1995, sued
Ray Parker, Jr. over, claiming that his theme song for the
movie
Ghostbusters infringed
I Want a New Drug. There are certainly some similarities
between the songs, but whether this was the result of copying or
coincidence was never determined since the parties reached a
confidential settlement.
Although Parker ain't afraid of no ghost, he might
have been afraid of a copyright infringement lawsuit. They can
cost too much, make you sick, hurt your head, keep you up all
night, make your mouth too dry and make you nervous, wondering
what to do. They won't make you feel too good so sometimes
settling can be better than fighting.
How To Avoid Infringement Claims
There is no way to guarantee you’ll never be sued for copyright
infringement, but you can take steps to protect yourself and make it
easier to defend infringement claims brought against you. The
following are some practical tips:
Obtain permission to use copyrighted material unless you’re very
sure your use clearly constitutes fair use (which is often difficult
to be sure of)
Authors should keep written or recorded records of their
creations
Date and keep notes and drafts of works you create (this helps establish independent creation)
File copyright registrations as soon as possible after creation
and
before publication if possible (this can help prove ownership of
your work)
Do not accept unsolicited material from authors (this is
especially important for publishers, record companies, movie
studios, TV producers, and famous recording artists and writers
since the more famous you are the bigger the target you are for
copyright infringement claims).
Return unsolicited materials unopened along with a letter
stating that you have not reviewed the material (companies should have strict written policies on this
and follow them religiously).
