‘Copyright Infringement’ occurs when a person other than the copyright owner exercises any of the exclusive rights in a copyrighted work either without permission from the copyright owner (often called a ‘license’) or without falling under the fair use or other exceptions listed under the Copyright Act. For instance:
- A publisher that decides to make and sell copies of a manuscript that they’ve received without the author’s permission would be infringing the author’s reproduction/copying and distribution rights.
- A movie studio that makes an unauthorized film adaptation of a best-selling novel is infringing on the author’s right to prepare derivative works.
- A local theater that puts on a performance of a play script is infringing the author’s right to publically perform or display the work.
- A local public access channel that starts showing entire episode reruns of Seinfeld without permission is breaching the right to have the work transmitted.
The infringer need not to have intentionally made an unauthorized use of a copyrighted work (i.e. he knew that the work was protected by copyright and his use was not permitted) in order for copyright infringement to have taken place.
Although there are criminal penalties available, copyright infringement is usually a civil legal claim, meaning that it is largely the responsibility of the copyright owner to bring forward a claim of infringement (as well as to monitor for unauthorized use!).
In order for a copyright infringement claim to be successful, two questions must be answered in the affirmative:
- Did copying (i.e use of a exclusive right) of a work occur?
- Is the work and the portion or elements of the work used protected by copyright?
When trying to answer whether or not copying occurred, the courts will ask two sub-questions: how substantially similar is the alleged copying to the original work and did the accused infringer have access to the original work. Literal word-for-word copying of a work is typically pretty clear evidence of infringement. However, this identical copying is not always present, so courts instead look at how substantially similar the infringing work is to the original. For example, in the case of one author accusing another of writing a book that infringes on the copyright of an earlier novel, the court would compare the similarity of characters, settings, and plot between the two books in determining if they are substantially similar.
If the two works are deemed to be substantially similar, than the question is asked if the alleged infringer had access to the original work. ‘Proof of Access’ is an essential element of a copyright infringement claim. One cannot be guilty of copying if one has never seen or had access to the original work. This is because copyright law only protects the original expression of an idea, and not the idea itself. It is perfectly possible for a songwriter to write a virtually identical song as one created a couple of years earlier, but for their to be no infringement if it cannot be proved that the songwriter ever heard or had access to the original song. The fame or notoriety of an original work also weighs in determining access. For instance, it would be very difficult for a defendant to deny that he had never seen Leonardo Da Vinci’s Mona Lisa, given that that painting is world famous and its image has been used all over. The same could also be said of the hits of The Beatles, which have been played and sold worldwide, or the Harry Potter books, which have been widely popular and translated and distributed on a global level. In reverse though, the burden of proof in showing ‘access’ may be higher for works that are more obscure, and in some cases it must be proved that the alleged defendant not only had the opportunity to access the original work, but did in fact access it and consult it.
Once copying has been shown, than it must be proven that the portion of the original work copied is protected by copyright law. While it may sound like it, this is hardly a ceremonial consideration. Remember, there are limits to what can be copyrighted. For instance, the idea of a romantic story featuring a strong-willed heroine set during the Civil War is not protected by copyright and would not infringe on Gone With the Wind. Courts may also examine what is part of the public domain (i.e. non-copyrighted works or elements) and consider whether the original work borrowed or was based upon public domain material. To the extent a portion of the original work is determined to have come from the public domain, than that portion of the work can not be considered as part of the infringement claim.