Copyright Infringement and Remedies

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• federal government does not enforce copyrights
• Authors must enforce their own rights
• Liability for infringement is based upon strict liability
  • can hold an infringer liable for violating a copyright even if the infringement was not intentional

Pursuing Copyright Infringement

• To pursue an action for copyright infringement:
  • plaintiff must prove ownership of the copyright
    • typically by showing a copyright registration
  • must show that the defendant has infringed on that copyright
• Copyright infringement cases are very rarely simple cases
  • To show that there has been an unauthorized reproduction
    • plaintiff must show that the defendant had access to the copyrighted work
    • access to the copyrighted work alone is not enough to prove infringement
    • must show that the plaintiff’s and defendant’s works are substantially similar
      • common tests used to determine substantial similarity:
        • “whether a lay observer would consider the works as a whole substantially similar to one another”
      • is a fact-intensive inquiry

Remedies

• injunction
  • stops the infringer from violating the copyright holder’s right
• damages
  • defendant may be liable for statutory damages under copyright law
  • damages are higher for willful copyright infringement

Defenses

• defense against a copyright infringement case:
  • argue that the plaintiff’s work is not original
    • present facts that the works are not substantially similar
  • use of the copyrighted work is allowed under the fair use doctrine

Fair Use

• there are some limitations on a copyright holder’s exclusive rights
  • Fair use is permitted in these situations to promote free speech
• Fair use law states that fair use of a copyrighted work is not copyright infringement
  • E.g.,
    • Criticism
    • Comment
    • News reporting
    • Teaching (including multiple copies for classroom use)
    • Scholarship
    • Research

Factors For Considering Fair Use

• The purpose and character of the use
  • use for nonprofit, educational, or comment purposes tends to favor fair use
  • use that is for commercial or profit purposes tends to weigh against fair use
• The nature of the copyrighted work
  • more creative a work is, the more protection it will be afforded
  • Fair use tends to favor the use of facts and not the creative expression of an idea
• The amount and substantiality of the work used
  • Use of a small amount of a copyrighted work tends to favor fair use
  • use of a small part of a work that encompasses the substantial idea in that work weighs against fair use
• The effect of the use upon the potential market
  • use that has no effect on a potential market for a work tends to weigh in favor of fair use
  • use of a work that has a major effect on the market is less likely to be considered fair use
• Courts weigh these factors against one another to determine whether the use of a copyrighted work is fair use

Fair Use for Educational Purposes

• an educator using copyrighted material is not always considered fair use

Example of Fair Use

Education professor shares one short excerpt from a copyrighted academic journal article about teaching styles with students to illustrate a lesson.

• This activity is probably fair use
• Analysis of the fair use factors shows:
  • Use in an educational setting tends to favor fair use
  • use of a scholarly journal article that contains facts tends to favor fair use
  • use of a small amount of a copyrighted work tends to favor fair use
  • use likely does not affect a potential market because it is being used in a restricted classroom setting

Example of Not Fair Use

Education professor prepares a newsletter for a website and includes a copyrighted cartoon about teaching students in the newsletter to illustrate a humorous point.

• activity probably is not fair use
• cartoon’s creator must give permission for the cartoon to be included in the newsletter
• Analysis of the fair use factors shows:
  • Use on a website for entertainment purposes tends to weigh against fair use
  • use of creative works tends to weigh against fair us
  • Use of the work could have a major effect on the cartoonist’s ability to market his or her products, especially because it is made available through the internet