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Copy Cats: Copyright Infringement Explained

By Jonnae Miller
Juris Doctor Candidate 2021, Southern University Law Center

Would you steal a car? Handbag? Television? Or a DVD? These are questions posed in a 47-second anti-piracy ad that was created to discourage illegal downloading and purchasing of illegally downloaded movies. Piracy is a form of copyright infringement. Copyright infringement occurs when an individual substantially copies someone else’s work or uses it without first obtaining permission. This action can be extremely detrimental economically…and emotionally to the original author of the works infringed. Consequently, courts have made it possible for individuals or entities to bring lawsuits when they believe that their copyright rights have been infringed.

Original creators of copyrighted works are given exclusive rights to those works, and others may not exercise those rights without the copyright owner’s permission. Giving copyright holders the ability to exploit their works and keep others from using them, with certain exceptions, encourages members of society to generate creative ideas and progressive innovation in the arts and sciences. Legislators have worked to balance protecting creative works and ensuring that the authors of such works benefit economically, while at the same time allowing the public to access and use the works fairly.

Copyright is a form of legal protection that dates back to at least the 1700s. In fact, the Founding  Fathers established the first copyright law under Article I of the United States Constitution to “… [P]romote the progress of Science and useful arts.” This supreme law, when created, provided protection to the authors of books, maps, and charts for a limited period of time. As society has advanced, so have the copyright laws. Copyright protections now extend to a plethora of both published and unpublished works, including music, art, audio-visual works, literature, and architecture. However, since copyright protects the expression of ideas rather than the ideas themselves, concepts, theories, titles, inventions and slogans are not available for copyright protection, though they may be available for patent, trade secret or trademark protection. The original creator of a copyrighted work is recognized as a copyright holder. Protection of works created on or after January 1, 1978, generally lasts for 70 years after the death of the author, and if a “work for hire,” for 120 years after creation or 95 years after publication whichever is shorter.

Copyright infringement is a violation of intellectual property rights that can be punishable both civilly and criminally in federal court. In order to prove infringement in court, a copyright holder must first establish a valid copyright of a work. A copyright certificate can be provided for this purpose, or other proof that establishes the date that the copyrighted material was created. A copyright is automatically established when the work is fixed in a tangible form, with tangible being a real, substantial medium in which the work can be observed using one of the senses. Although not absolutely required, the obtainment of a certificate through the U.S. Copyright Office after the successful formal registry of the work is advantageous to the copyright holder in court, where proof of registration is necessary to bring a copyright infringement lawsuit. The certificate received can be presented as solid evidence there to support the legitimacy of the copyright infringement claim. Furthermore, copyright registrations are filed in the Library of Congress and provide public notice of the copyrighted work.

Once copyright rights are established, the plaintiff must prove that the original copyrighted material was infringed. As mentioned, copyright holders receive certain exclusive rights to their works. These include the right to reproduce the work, to distribute copies or phonorecords of the work to the public by sale, rental, lease or lending, to perform or display the work to the public, and to edit or adapt by preparing derivative works. Ultimately, the copyright holder decides in which ways their copyrighted work will be distributed, copied, streamed, or displayed. The unlawful exercise of these exclusive rights without the copyright holder’s authorization, such as by creating substantially similar works, would constitute copyright infringement. A defendant may be held liable even if there was no intent to commit copyright infringement.

When a copyright holder establishes infringement by proving a valid copyright and that the copyrighted work was in fact used illegally, the court may among other things award damages and enjoin the infringer from further infringing acts. When a work is registered with the Copyright Office within three months of publication or prior to an infringement, statutory damages may be available for monetary relief without having to prove actual damages or profits, which can also lead to an award of attorney’s fees. In such cases, statutory damages of not less than $750 or more than $30,000 per work can be awarded by the court, or up to $150,000 if willfulness can be shown. Generally, copyright infringement matters are handled in civil court as above, though some are dealt with criminally. When in criminal court, a defendant found guilty of copyright infringement can be given up to five years in jail time and/or fined up to $250,000.

Copyrighted material can be used exclusively by copyright owners or by others to whom they grant permission. An exception to this is the legal concept of fair use, which is a defense to a copyright infringement claim that may be used in court by a defendant where four factors are assessed: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion taken, such as if the use involves a small unimportant amount of the copyrighted material, and (4) the effect of the use upon the potential market. However, if the court finds that on balance a copyright infringement has occurred, the above-referenced remedies may be available.

Understanding copyright laws and legal procedures can decrease the amount of stress one may experience when confronted with a copyright infringement issue. When an original creator suspects that their copyright rights are being infringed and wishes to file a lawsuit, they must prove a valid copyright and that the work was in fact used illegally. If this is successfully done, the original creator may be entitled to relief, as discussed above. In a society filled with creativity and innovation, taking measures to prevent infringement can ensure that our inventiveness continues to thrive.