Chapter 15, “Help Beyond This Book.”
defendants. ( Fogerty v. Fantasy, Inc. , 114
However, even if the case is serious, don’t
S.Ct. 1023 (1994).)
despair. The fact is, many infringement suits
are won by the defendant, because either
the plaintiff did not have a valid claim to
What to Do If You’re
begin with or the defendant had a good
Accused of Infringement
defense. This section is not a substitute for a
What should you do if you’re accused of
consultation with an experienced attorney;
copy right infringement? First, see how serious rather, it is designed to give you an idea the claim is. If it’s minor—for example, an
of some of the things you need to discuss
author validly claims that you have quoted
when you see an attorney.
a bit too much of his or her work, used an
il ustration, or reprinted an article without
Defenses to Copyright Infringement
permission—the matter can usual y be
settled very quickly for a few hundred dol ars, Even if there are substantial similarities certainly less than $1,000. This kind of thing between the plaintiff’s work and your work, happens all the time in publishing. There
you will not necessarily be found guilty of
is no need to see a lawyer (who’ll probably
infringement. The similarities may simply be
charge you at least $250 per hour) to deal
the result of coincidence; in this event there is
with this type of minor annoyance. Have
no liability. But even direct copying from the
the author sign a letter releasing you from
plaintiff’s work may be excused if it constitutes
liability in return for your payment.
a fair use or there is another valid defense.
CHAPTER 11 | COPYRIGHT INFRINGEMENT | 307
Possible defenses to an infringement action work was registered before the plaintiff’s,
include many general legal defenses that often this will be easy to prove.
involve where, when, and how the lawsuit was
EXAMPLE: Marilyn claims that Jack turned
brought, who was sued, and so on. We obvi-
her novel into a screenplay without her
ously can’t cover all of this here. This section
permission and sues him for infringement.
is limited to outlining the major defenses that
Jack had deposited a copy of the allegedly
are specific to copyright infringement actions.
infringing screenplay with the Copyright
Again, if you find yourself defending a serious
Office one year before Marilyn published
copyright infringement action, retain a quali-
her novel. Jack can prove independent
fied attorney!
creation simply by submitting a certified
copy of his deposit into evidence.
Fair use
In the case of unregistered works, you
Authors are allowed to copy other authors’
would have to present other evidence
protected expression if the copying con-
showing when the work was created, such
stitutes a fair use of the material. Fair use
as witnesses who saw you write it or dated
is a complete defense to infringement. See
notes and drafts.
Chapter 10, “Using Other Authors’ Words.”
What if the plaintiff’s and your works
were created at about the same time, or you
The independent creation defense
can’t prove when you created your work?
As discussed in Chapter 5, “What Copyright In this event, it is very difficult, if not
Protects,” copyright protection does not
impossible, to prove independent creation.
prevent others from independently developing This is because the alleged copying need
works based on the same idea or explicating
not be done consciously for the plaintiff to
the same facts. If you can convince the
win. Unconscious copying also constitutes
judge or jury that you created your work
infringement (although the damages
independently, not by copying from the
imposed may be smaller than for conscious,
plaintiff, you will not be held liable for
willful copying). Your quandary, then, is
infringement. In effect, you would try to
how to prove you didn’t unconsciously copy
prove that any similarities between your work from the plaintiff’s work. About the best
and the plaintiff’s are purely coincidental.
you can do in this situation is show that you
Such coincidences are not at all uncommon.
created similar works in the past without
The one sure way to show independent
copying and that you had no need to copy
creation is for you to prove that your work
from the plaintiff’s work. The judge or jury
was created before the plaintiff’s. If your
just might believe you.
308 | THE COPYRIGHT HANDBOOK
CAUTION
for any purpose. As discussed in detail in
Never assert independent creation
Chapter 5, the public domain includes:
or any other defense if it’s not true. If your
• the ideas and facts contained in
defense is based on lies, you’ll most likely lose
protected works
anyway and possibly anger the judge or jury. As a
• the ideas, facts, and expression con-
result, you could end up being far more severely
tained in works that don’t qualify for
punished than you otherwise might have been
copyright protection because they
and possibly prosecuted for perjury, a felony.
do not constitute original, fixed,
minimally creative works of authorship
• works that might otherwise qualify
Statute of limitations
for protection but are denied it, such
A plaintiff can’t wait forever to file an
as works by government employees,
infringement suit. A copyright infringement
certain blank forms, titles, and short
lawsuit must be filed within three years after
phrases, and
the date that the infringement reasonably
• works for which copyright protection
should have been discovered by the plaintiff.
has expired.
The three-year period starts to run anew
Remember, however, that so long as the
every time there is a fresh infringement upon plaintiff’s work was registered within five a work; but each infringement is actionable
years after creation, it is presumed to be
only within three years of its occurrence.
protected by copyright. This means that you
These rules are tricky, but if the plaintiff
will bear the burden of proving the work
waited too long to file suit, the defendant
was really not protected.
may be able to have the case dismissed. How-
ever, it’s possible for an infringement lawsuit The use was authorized
to be brought long after an al egedly infring-
In some cases, the al eged infringer isn’t an
ing work was first created. For example, the
infringer, but a legal transferee. For example:
Supreme Court permitted a screenwriter who
• The infringer might legitimately claim
claimed that the movie Raging Bull infringed
to have received a license to use the
on a screenplay he wrote in 1963 to wait 18
plaintiff’s work, and the work the
years before filing a copyright infringement
plaintiff claims to infringe on his copy-
lawsuit. ( Petrel a v. Metro-Goldwyn-Mayer,
right falls within that license. Example:
Inc. , 572 U.S. ___ (2014).)
Author A orally tells Author B he can
copy his work, then later claims never
Material copied was in the public domain
to have granted the permission.
If the material you allegedly copied is in the
• Conflicting or confusing licenses
public domain, it can be used by anyone
or sublicenses are granted and the
CHAPTER 11 | COPYRIGHT INFRINGEMENT | 309
defendant claims to be the rightful
evidence—the plaintiff cannot complain
owner of the right(s) in question.
about your alleged wrongs, or
• A transferee wasn’t restricted in
• the idea that the copyright owner knew
making further transfers and
of your acts and expressly or impliedly
transferred the copyright to individuals
consented to them.
unknown to the original owner.
Several examples of lawful transfers
Deciding Whether to Settle or Fight
are presented in Chapter 8, “Transferring
Copyright Ownership.” If any of these
If a substantial claim is involved, the
transferees were sued they would have a good decision whether to settle the case or fight defense—that is, that their use was lawful.
it out in court should be made only after
consulting an attorney who is familiar with
the facts of your particular case. However,
Public Domain Status of Foreign Work
in making this decision you need to
carefully weigh the following factors:
Certain foreign works that you may have
• the likelihood the plaintiff will prevail
thought were in the public domain because
• how much the plaintiff is likely to
of failure to comply with U.S. copyright
collect after a win
formalities, such as using a copyright notice
• the costs of contesting the case, not
or filing a copyright renewal, are no longer
in the public domain. Copyright in many of
only in terms of money, but time,
these works was automatical y restored on
embarrassment, and adverse publicity,
January 1, 1996 as a result of U.S. adherence
and
to the GATT Agreement. However, you may
• how much the plaintiff is willing to
have special rights if you used such foreign
settle for.
material before 1996. (See Chapter 12,
If the plaintiff clearly does not have a
“International Copyright Protection.”)
valid claim, you may be able to have the
suit dismissed very quickly by filing what’s
called a summary judgment motion. Under
this procedure the judge examines the
Other defenses
plaintiff’s claims and decides whether there
is any possibility the plaintiff could prevail
Some of the other possible defenses to copy- if a trial were held. If not, the judge will right infringement include such things as:
dismiss the case. Of course, you must pay a
• the notion that if the plaintiff is guilty lawyer to file a summary judgment motion,
of some serious wrongdoing him-
but, if successful, it will cost far less than
or herself—for example, falsifying
taking the case to trial. Moreover, the court
310 | THE COPYRIGHT HANDBOOK
may be willing to award you all or part of
with your application. If you’re
your attorneys’ fees. This is especially likely
extremely worried about being sued for
if the plaintiff’s suit was clearly frivolous.
infringement, it may even be worth-
On the other hand, if the plaintiff does
while to register your unfinished drafts.
have a valid claim, paying an attorney to
• If you’re an editor for a magazine or
fight a losing battle will only compound your
publishing company, always promptly
problems. Valid claims should be settled
return manuscripts you reject; nothing
whenever possible. A plaintiff who was able
arouses a writer’s suspicions more than
to obtain a preliminary injunction from a
having a publisher keep a rejected
federal judge, probably has a valid claim.
manuscript and then later publish a
similar work by another writer. If you
How to Protect Yourself From
already have another writer working on
Copyright Infringement Claims
the same or similar idea, let the author
of the rejected material know about it.
The only way you can absolutely prevent
• Film and television producers and
others from accusing you of copyright
others in the entertainment industry
infringement is never to write and publish
who receive unsolicited submissions
anything. However, there are some less
should either (1) have an established
drastic steps you can take to help protect
policy of returning unsolicited manu-
yourself from infringement claims:
scripts unopened, or (2) refuse to read
• First and foremost, always get permis-
them unless the author signs a release
sion to use other authors’ protected
absolving the reader from liability for
expression unless your intended use
infringement.
clearly constitutes a fair use. (See
Chapter 10, “Using Other Authors’
Words.”) If you’re not sure whether
Copyright Infringement Online
or not you need permission, consult a
Copyright infringement occurs every
copyright attorney.
second in the online world, particularly
• Date and keep your notes and drafts;
on the Internet, which isn’t controlled
these may help you to prove that your
or supervised by anybody. Many online
work was created independently from
users have the mistaken idea that any
the plaintiff’s.
work available online can be freely copied,
• Promptly register your finished work
distributed, and other wise used without
with the Copyright Office; registration
permission.
conclusively establishes the date of
The problem of unauthorized copying of
creation of the material you deposited
copyrighted works is not new. Ever since
CHAPTER 11 | COPYRIGHT INFRINGEMENT | 311
the perfection of the photocopy machine,
For example, because they’re afraid of being
books, articles, and ot
her printed works
sued for infringement, publishers are seeking
have been copied and distributed without
permission from their authors to reproduce
permission from, or payment to, the
the authors’ preexisting works online and are
copyright owners. The introduction of the
also making sure that publishing agreements
fax machine made it even easier to deliver
for new works address electronic rights. For
photocopies over long distances.
the same reason, copyrighted photos and
However, there are important limitations
other materials have been removed from the
on distribution of unauthorized photocopies: Internet when copyright owners complained.
Copy quality degrades with each generation; And an entire website on Elvis Presley was
photocopying large amounts of work
removed when the Presley estate complained
can be time-consuming, expensive, and
that the site violated the estate’s copyright and
inconvenient; and a copied document is stil other intellectual property rights.
in the same format as the original and can be
easily identified as a copyrighted work.
Who’s Liable for an Infringement?
None of these limitations exist for digital
copies. Perfect digital copies can be made
As discussed above, anyone who directly
easily, cheaply, and quickly, over and over
exercises any of a copyright owner’s exclu-
again. Digital copies do not degrade. It
sive rights without permission is guilty of
is easy to disguise the origins of a digital
copyright infringement unless there is a
copy by making simple format changes that legal excuse, such as fair use. You’ll be
require only a few keystrokes. And digital
liable, for example, if you download a
copies are easy to distribute: A copy can be
protected work from the Internet and
posted on the Internet and easily copied
publish it in a website, book, or on a
by any number of users anywhere in the
CD-ROM without permission.
country or across the world.
EXAMPLE: A software publisher called
Indeed, unauthorized copying is so
Wizardware downloaded from the Internet
ubiquitous on the Internet that some have
several sample “cities” created and uploaded
declared that copyright is dead. However,
by players of the computer game Sim City.
to paraphrase Mark Twain, the reports of
Wizardware published the cities on a CD-
copyright’s death are greatly exaggerated.
The Copyright Handbook Page 54