Criminal Prosecutions for Infringement ............................................................................. 299
Who Is Liable for Infringement? ..............................................................................................300
How Much Time You Have to Sue: Statute of Limitations....................................... 301
What You Can Get If You Win: Remedies for Copyright Infringement ................. 302
Injunctive Relief ................................................................................................................................ 302
Damages ............................................................................................................................................... 303
Destroying the Infringing Works ............................................................................................ 305
Attorney Fees and Costs ............................................................................................................. 305
What to Do If You’re Accused of Infringement ....................................................................306
Defenses to Copyright Infringement ....................................................................................306
Deciding Whether to Settle or Fight ....................................................................................309
How to Protect Yourself From Copyright Infringement Claims .............................310
Copyright Infringement Online .......................................................................................................310
Who’s Liable for an Infringement? ..........................................................................................311
Internet Service Providers’ Safe Harbor for Copyright Infringement Liability .....313
278 | THE COPYRIGHT HANDBOOK
What to Do If Someone Infringes Your Work Online ........................................................314
Step 1: Make Sure Infringement Has Occurred ...............................................................314
Step 2: Send Cease-and-Desist Email .....................................................................................315
Step 3: Send DMCA Takedown Notices ..............................................................................316
Use of Licenses to Prevent Infringement .............................................................................319
Technological Solutions to Infringement ........................................................................... 320
CHAPTER 11 | COPYRIGHT INFRINGEMENT | 279
Previous chapters have discussed the • tell you how to protect yourself from
steps an author or other copyright
infringement claims.
owner must take to give his or
her work maximum protection under the
copyright laws. Now we explore how these
What Is Copyright Infringement?
protections are enforced. This subject is
In Chapter 1, “Copyright Basics , ” we
referred to as “copyright infringement.”
described a copyright as a bundle of five
When a copyright dispute arises, there
exclusive rights. These include the right to
are often several self-help steps a copyright
reproduce, distribute, prepare derivative
owner can take. These generally amount to works based upon, perform, and display a
telling the infringer to stop the infringing
protected work. Subject to important excep-
activity or pay for the infringement. When
tions discussed below, these rights cannot
push comes to shove, however, there is
be exercised by anybody but the copyright
only one remedy with teeth in it. This is to
owner unless the owner’s permission is
ask a federal court to order the infringing
obtained. If copyright rights are exercised
activity halted and to award a judgment for without the owner’s permission, the copy-
damages. Because this type of litigation is
right is said to be infringed.
procedurally complex, an attorney skilled in
Infringement of written works usually
copyright litigation is required.
involves the unauthorized exercise of a copy-
This chapter is not intended as a substitute right owner’s exclusive rights to reproduce the for a good copyright attorney. Rather, its aim work and prepare derivative works based on it.
is to:
In plain English, this means the unauthorized
• help you recognize when copyright
copying of the work. This chapter focuses on
infringement has occurred
infringement due to copying. However,
• suggest some steps an author or other
be aware that performing a play, publishing
copyright owner can take to deal
an unauthorized copy, or reciting a written
effectively with infringement without
work in public also constitutes copyright
resorting to lawyers and the courts
infringement—unless the copyright owner’s
• tell you what to expect in the event of a permission is obtained.
court action
There are many ways to copy a written
• help you estimate what damages
work. An infringer may copy another’s work
and other types of court relief are
by means of a computer, scanner, photocopy
potentially available to you in an
machine, or other mechanical device, or may
infringement suit
do it the old-fashioned way: by transcribing
• introduce some ways to defend against verbatim or paraphrasing protected material
infringement charges, and
into a work of his or her own. The latter
280 | THE COPYRIGHT HANDBOOK
type of copying need not even be done
EXAMPLE 2: The publisher Scrivener &
consciously to constitute infringement.
Sons publishes a paperback version of
A person who unconsciously copies from
Stephen King’s latest bestseller without his
memory a work after having read it may
permission. Scrivener has infringed on King’s
be a copyright infringer, but the penalties
copyright by publishing his book without
imposed on such a person would usual y be
permission, but it has not committed
less than those for a person who consciously
plagiarism because it has not posed as the
and wil ful y copied another’s work.
author of the book.
EXAMPLE 3: Dr. Jekyl, a biophysicist at a
The difference between plagiarism
leading university, copies a paper written by
and copyright infringement
one of his colleagues and publishes it under
Many people believe that plagiarism and
his own name in a scientific journal. Since the
copyright infringement are the same thing.
colleague’s paper was protected by copyright,
Not so: A plagiarist is a person who poses
Dr. Jekyl is both a plagiarist and copyright
as the originator of words he or she did not
infringer.
write, ideas he or she did not conceive, or
facts he or she did not discover. For purposes
How to Avoid a Plagiarism Charge
of plagiarism, the material stolen need not
be protected by copyri
ght. In contrast, a
To avoid charges of plagiarism, authors of
copyright infringer is a person who makes
scholarly works (histories, biographies, legal
unauthorized use of material protected by
and scientific treatises, and so on) must
copyright. Absent protection, there can be
always give proper credit to the sources of
no infringement. Moreover, infringement
their ideas and facts, as well as any words
can occur even though the infringer gives
they borrow. Authors of less serious works,
proper credit to the author of the protected
how-to books for example, should always
expression. Of course, some infringers also
attribute quotations, but may not always
take credit for the work they copy; they are
need to give credit for ideas and facts they
both plagiarists and infringers.
borrow (authors of such works should
discuss this with their publishers). It is neither
EXAMPLE 1: Louis, a professor of French,
customary nor necessary for authors of works
translates a novel by the obscure 19th
of fancy, such as novels and plays, to credit
century French novelist Jean Valjean and
the sources of their inspiration, whether
publishes it under his own name. The novel
other works of fancy, newspaper accounts,
is in the public domain, thus Louis has not
or histories. But they should, of course, give
committed copyright infringement. He is,
proper attribution for direct quotations.
however, a plagiarist, because he has posed
as the originator of the novel.
CHAPTER 11 | COPYRIGHT INFRINGEMENT | 281
A plagiarist cannot be sued for copyright
by copying; infringement of other
infringement if all he or she takes are
exclusive copyright rights is also
unprotected ideas or facts or words that
possible), and
are in the public domain. There is no legal
• improper use of the work’s protected
requirement to provide attribution when
expression by the alleged infringer.
public domain works are copied and placed
We discuss each element below. Where
into new works. ( Dastar Corp. v. 20th
it’s clear you have a valid infringement
Century Fox Film Corp. , 123 S.Ct. 2041
claim, it may be possible to settle the matter
(2003).) But publishing contracts usual y
without the aid of an attorney as discussed
contain a provision, cal ed a warranties and
below. However, if you’re not sure whether
indemnities clause, by which the author
you have a valid claim, get professional help.
promises that the work submitted to the
How to find a competent copyright lawyer
publisher is not in the public domain. So a
is discussed in Chapter 15, “Help Beyond
plagiarist could be sued by a publisher for
This Book.”
breach of contract or possibly fraud. And,
aside from the possible legal consequences,
A Work Protected by Copyright
being accused of plagiarism is usual y not
good for one’s career. Col ege professors
The question of infringement does not even
and journalists have been fired because of
arise unless the work allegedly infringed is
plagiarism.
protected by copyright. This means that the
work must meet the three prerequisites for
copyright protection discussed in detail in
How to Know Whether You Have
Chapter 5, “What Copyright Protects”; that
a Valid Infringement Claim
is, the work must be:
If you come away with nothing else from
• fixed in a tangible medium of expression.
this chapter, remember this: The fact that
You cannot sue anyone for copying
another person’s work is similar to your
words you have spoken but never
own does not necessarily mean that he or
written down or otherwise fixed in a
she has committed copyright infringement.
tangible form.
Infringement occurs only if all three
• independently created. The material
require ments discussed below are present:
allegedly infringed upon must have
• ownership of a work protected by a
been independently created. You
valid copyright
cannot sue someone for copying words
• actual copying of the work by the
that were copied from others.
alleged infringer (remember, this
• minimally creative. The work you
chapter focuses on infringement
believe has been infringed upon must
282 | THE COPYRIGHT HANDBOOK
have been the product of a minimal
their involvement. For this reason, copying
amount of creativity. You probably will is usually established not through direct
not be able to successfully sue someone evidence such as witnesses or admissions,
for copying a recipe, an alphabetically
but by showing two things:
organized directory, or similar items.
• access by the infringer, and
• that the works, or parts of them, are
Timely registration creates
substantially similar.
presumption of validity
If these are proven, copying is inferred,
So long as your work is registered within
because there is no other reasonable
five years of the date of first publication,
explanation for the similarities.
it is presumed to be protected by a valid
copyright and the person(s) named in the
Access
registration certificate are presumed to be
To prove access, you must show that the
the copyright owner. This is one of the
alleged infringer had access to your work—
greatest benefits of copyright registration.
that is, the opportunity to view it. The fact
It means that you do not have to go to the
that your work has been made generally
time and trouble of proving that your work available to the public through publication
is original (which can be very hard to prove) is sufficient to establish access. In the case or that you actually wrote it. Rather, it’s
of unpublished works, however, access must
up to the alleged infringer to try to prove
be shown in different ways. One way would
that the work was not original or that your
be to show that the alleged infringer had
copyright is invalid for some other reason.
contact with a third person—for instance,
an editor—who possessed a copy of your
Actual Copying by the Al eged Infringer manuscript. But in the absence of such
contacts, you’re going to have a hard time
Second, it must be clear that the alleged
convincing anyone that the alleged infringer
infringer actually copied your work. In
had access to your unpublished work.
some cases, there may be witnesses who saw
the alleged
infringer copy (the infringer may Substantial similarity
have had a collaborator), or the infringer
may even admit it. However, an up-front
Here, you must prove that your work and
admission of copying is unusual. More
the work by the alleged infringer are so
typically, copyright infringement—like
similar that copying must have occurred.
adultery—usually happens behind closed
Assuming the alleged infringer had
doors, and the participants rarely admit
access to your work, you must compare
the similarities between your work and
CHAPTER 11 | COPYRIGHT INFRINGEMENT | 283
the infringer’s to see if copying may
Similarity Is Not Always
reasonably be inferred. But keep in mind
Due to Copying
that similarity does not always mean that
copying has occurred.
The late copyright attorney Alexander
We would all like to think that no one
Lindey, in his classic study Plagiarism and
else has ever had the same thoughts or
Originality (Harper 1952), identified the
feelings or dreams as we have had. But, in
fol owing 14 causes, other than copying,
sad fact, this is simply not the case. We are
why two works may be similar:
not unique. As usual, Oscar Wilde said it
• the use, in both, of the same or
best: “The brotherhood of man is not a mere
similar theme
poet’s dream: It is a most depressing and
• the fact that commonplace themes
humiliating reality.” As a result, it’s not only
carry commonplace accessories
common that two or more people will have
• the use, in both works, of stereotypes
the same ideas at the same time and express
or stock characters
• the fact that both employ the same
them in similar ways, it’s often inevitable.
well-weathered plot
To rule out the operation of factors
• the limited number of plots general y
that may give rise to similarity without
• the presence, in both, of hackneyed
copying—such as those listed in “Similarity
ingredients, episodes, devices,
Is Not Always Due to Copying,” below—
symbols, and language
your work and the alleged infringer’s must
• the fact that both authors have
be so similar that these factors are not a
drawn on the world’s cultural
The Copyright Handbook Page 49