Defenses to Copyright Infringement

CopyrightAn allegation of copyright infringement is an allegation that someone owned a valid copyright in a creative work and someone else copied some or all of the copyrighted creative work. If a person has a copyright in a creative work, the person has the exclusive right to copy, sell, or otherwise reproduce that work. Anyone else who does so without permission commits copyright infringement, and may face legal repercussions.

All of the above, however, presumes that the other person actually had a valid copyright.

What are defenses to Copyright infringement?

Independent creation is a defense to copyright infringement. This is another way of saying that the copyrighted work was not copied.

Having a license in the copyrighted work is a defense to copyright infringement actions. This means that the defendant had permission, or a license, to use the copyrighted work in the manner in which he or she used it.

If the use qualifies as “fair use” there is no copyright infringement. The fair use doctrine allows limited copying of copyrighted material under certain circumstances where authors would reasonably expect it and when it does not unfairly undermine the copyright protection.

  • Examples of fair use may be: parodies, satires, news reports, critiques, teaching, research, or reverse engineering.
  • Factors that are considered in determining whether copying is fair use include: (a) the purpose and character of the use (ex: teaching vs. commercial purposes), (b) the nature of the copyrighted work (the more creative the work, the more protection the work receives), (c) the amount or portion of the copyrighted work used, (d) the effect on the market or effect on the value of the copyrighted work cause by the copying (ex: diminished demand for the copyrighted work vs. no change in demand for the copyrighted work), and (e) other relevant factors.

Abandonment is a defense to copyright infringement. A person abandons a copyright if the person demonstrates an intent to surrender his or her rights in the copyrighted work. Merely not using the copyright does not demonstrate abandonment. Failing to enforce a copyright against known infringement over a period of time may show an intent to surrender rights in the copyrighted work.

A person’s misuse of their copyright may provide a defense to copyright infringement.

A copyright infringement lawsuit may be barred by the statute of limitations. The Copyright Act requires that a copyright infringement case be initiated within three years of the time the owner of the copyright knows or should have known of the infringement.

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