For writers, artists, and other creators, protection of their work is critical in achieving success. If people’s original, creative work is allowed to be copied and sold by others, the incentive to create diminishes. As a result, federal law provides protection for creators from copyright infringement. As a creator of original works, it is important to understand your rights when it comes to your creations.
Basic Elements of Infringement
There are two basic elements to demonstrate that copyright infringement has occurred. The first is that the plaintiff must allege and prove that he or she has ownership of a valid copyright. The clearest and best way to demonstrate this is through a certificate of registration issued by the United States Patent and Trademark Office (USPTO) before publication or within five years after first publication. This certificate is prima facie evidence of the ownership and validity of a copyright. Prima facie evidence is a fact presumed to be true unless proven otherwise.
Importantly, even if the presumption that comes with a certificate of registration is not available because the five years have already passed copyright owners of U.S. works must register before filing an infringement lawsuit. Therefore, it is often advisable for copyright owners to register, even if no infringement has occurred, in order to gain the benefits of the presumption of ownership and to avoid having to register later if infringement is suspected.
The second element in an infringement case is that the plaintiff must prove that the defendant violated one of the exclusive rights reserved to the copyright owner. Under 17 U.S.C. §106, these rights include, but are not limited to, the right of reproduction, distribution, and the creation of derivative works. However, copyright law does not confer any rights against another person who independently creates work. Therefore, the plaintiff must demonstrate that the defendant obtained protected expression belonging to the plaintiff and used that expression in the defendant’s own work. This showing is called “copying in fact.”
In order to prove copying in fact, there are often two forms of circumstantial evidence that are important. The first is that the defendant had access to the plaintiff’s work. If the defendant had no way of seeing or hearing the plaintiff’s work, the likelihood that copying occurred is low. The second form of evidence is the degree of similarity between the work of the defendant and the plaintiff. For this purpose, substantial similarity may be raised, which is the level of “sameness” of the works.
Under U.S. copyright law, there are four general remedies for copyright infringement:
- Impoundment of all copies that allegedly infringe the owner’s rights;
- Destruction of all infringing copies; and
- Monetary damages.
In addition, the court may award the full recovery of costs and attorney’s fees.
Protection Your Work
If you would like more information on how to gain and enforce protection for your copyrighted material, speak with experienced attorney today. At the Philadelphia Small Business Law Center, we have successfully assisted creators with copyrighting their works and look forward to hearing from you.