Copyright Infringement

Anyone who violates any of the exclusive rights of the copyright owner, as provided by 17 USC §106, or of the author as provided in §106A, or who imports copies or phonorecords into the United States in violation of §602, is an infringer of the copyright or right of the author, as the case may be. The legal or beneficial owner of an exclusive right under a copyright is entitled to institute an action for any infringement of that particular right committed while he or she is the owner of said exclusive right.

In order to institute an infringement action it is necessary to have a valid federal copyright registration. If, however, the action is brought by the author who is alleging a violation of the author’s rights protected by §106A no federal copyright registration is required. Notwithstanding, most copyright cases charge that the defendant is infringing one of the rights enumerated by §106 and not a violation of §106A. This is true because §106A deals only with a very limited moral right and is usually not applicable, at least in the United States. This information is important to know because it is frequently said that a copyright exists immediately upon the original creation and fixation thereof. This is legally correct, but the right that is created immediately through original creation and fixation does not entitle you to maintain an action against an infringer. Furthermore, it is important to register as soon after creation and fixation as possible. Delaying registration may severely limit the amount of damages that can be awarded in the event there is a finding of copyright infringement. See 17 USC 412.

In most instances the term copyright infringement relates to the situation where the copyright owner is alleging a violation of §106, which is how the term will be used moving forward.

As a general rule and starting point, it is illegal for anyone to violate any of the rights provided by the copyright law to the copyright owner. The exclusive rights of the copyright owner are set forth in 17 U.S.C. § 106. These rights collective encompass what is referred to, usually in the singular, as a copyright, but which is probably best referred to as a collection of individual rights that provide the copyright owner with the right to prevent a range of different activities. For purposes of liability, direct infringement of one of these rights listed in §106 is of particular concern. Likewise, and perhaps more of a concern for institutions, is the liability that may attach as a result of contributory infringement and/or vicarious liability. These concepts are discussed below.

Direct Copyright Infringement

When a copyright owner claims that someone has committed copyright infringement it is necessary for the copyright owner to prove two things. First, it is necessary for the copyright owner to prove that they are indeed the owner of a valid copyright. Second, the copyright owner must prove that the alleged infringer copied the original elements of the copyrighted work. Generally speaking the first prong is not difficult to meet, provided of course that the copyright owner has obtained a federally registered copyright. In most copyright infringement cases the question will boil down to whether the alleged infringer took that which is original. This is a crucial question because a copyright protects only original works of authorship.

Perhaps an example will help illustrate. It is axiomatic that facts cannot be copyrighted. The United States Supreme Court has held that names, addresses and telephone numbers in a telephone book are facts. Therefore, individual names, addresses and telephone numbers are not copyrightable. This is not to say, however, that a telephone book is not copyrightable. In most telephone books there are many original works of authorship that are deserving of copyright protection, such as the prose works at the beginning of the book. Therefore, there may well be parts of the telephone book that are copyrightable. The copyright will, however, extend only to that which is original. Thus, it would not be copyright infringement to copy wholesale all the names, addresses and telephone numbers because these are not protected. Thus, the copyright obtained in a work such as a phone book would be considered “thin,” meaning that much of the work is available to the public domain.

Notwithstanding the above, it is important to understand that even the order of a series of non-copyrightable elements can be copyrighted as a compilation. For example, assume you have created an anthology of English Literature and all of the works you have chosen are in the public domain (i.e., no longer copyrighted). Even though the underlying works are not copyrighted you still have a copyright in the compilation. What is original and copyrightable is the unique order of the anthology. Additionally, if you write original notes, problems and introductory pieces, this material will be copyrighted and, therefore, protected. Remember, your copyright will extend only to that which is original. This means that you cannot claim any right in the non-copyrightable elements and others can simply copy these non-protected elements from your work.

 Contributory Infringement & Vicarious Liability

Fear of contributory infringement and vicarious liability is the reason many institutions and business entities are concerned about potentially infringing activities. This is true because, in order to be liable under either a theory of contributory infringement or vicarious liability, there is no requirement that the plaintiff prove that the individual or entity actually or actively engaged in the underlying infringement.

In order to establish contributory infringement, the plaintiff must demonstrate two things: (1) the existence copyright infringement; and (2) that the defendant knew of the underlying infringement and induced, caused or materially contributed to the copyright infringement. While active engagement in infringing activities is not required, a certain culpable mental state is necessary in addition to conduct that is calculated to further the infringement in some way. While this standard may seem difficult to prove, the knowledge prong can be satisfied by a showing either that the defendant had actual knowledge, or that the defendant should have known. In most situations, institutions and employers will likely not have significant worries associated with contributory infringement. Nevertheless, a contributory infringement theory does present real concerns that should be taken seriously.

In order to establish liability under a theory of vicarious liability, a plaintiff must prove: (1) the existence of an underlying copyright infringement; (2) that a defendant has a direct financial interest in the infringing activity; and (3) that a defendant has the right and ability to supervise the activity which caused the infringement. Unlike contributory infringement, but similar to the direct copyright infringement theory, knowledge of the underlying infringement is not an element of a claim for vicarious liability, and, therefore, innocence is no defense. Because innocence is no defense, vicarious liability can present many dangers.