Is attribution a defense to copyright infringement in the United States?

Copyright law grants the creator of a new work several exclusive rights. United States copyright law uses the term author to refer to many different creative professions like photographers and filmmakers. A creator is granted a copyright when the new work is fixed in a tangible medium, for instance when a photographer takes a picture or when an author writes a story down on paper. Copyright law grants a creator the exclusive right to perform the following tasks: to reproduce copies of the work, to prepare derivative works based upon the original work, to distribute copies of the work to the public, to perform the work, to display the copyrighted work
and, in the case of sound recordings, to transmit the work. If someone other than the copyright owner attempts to exercise one of these exclusive rights that can be considered copyright infringement. A copyright owner can file a lawsuit to get monetary damages or copyright infringement which has occured and to get an injunction to stop infringing activity.

When a defendant is accused of copyright infringement there are a few defenses available. The defenses to an allegation of copyright infringement are, 1. the work used is not covered by copyright, 2. the defendant independently created the work, 3. the use of the work is a fair use.

Attribution is the act of acknowledging that someone else created something. Frequently in academic research papers, the author of a paper will attribute work borrowed from other authors with a citation to the borrowed work. The practice of attribution is considered ethical and if an author does not properly attribute the work of others, that can be considered plagiarism. Plagiarism is the act of copying someone else’s work and claiming it as your own.

Copyright law is a fairly specialized field of law, therefore copyright law can frequently confuse attorneys and lay people. A key point to remember is that copyright infringement is not plagiarism, but plagiarism can be copyright infringement. It may not be ethical to reproduce someone else’s work and claim it as your own, but attribution is not a defense to copyright infringement.

For instance, if an author copied Shakespeare’s works and claimed their as their own, that would be plagiarism. It would not be copyright infringement however, because the copyright on Shakespeare’s works has expired and those works are in the public domain. If a website published recent pictures the website operator did not own, with a caption naming the photographer, that would not be plagiarism because the photographs are attributed to the photographer. However, it would be copyright infringement because reproducing the photographs without permission infringes on the of the original photographer’s right to reproduce their copyrighted works.

Attribution may be considered in a fair use defense, but there are several factors a court considers in a fair use defense and attribution is not a specific factor. Attribution will not automatically make the use of copyrighted material a fair use if the majority of fair use factors weight against the defendant.

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