What are defenses to copyright infringement in the United States?

If you are accused of copyright infringement, do not ignore the accusations. It is likely that if someone accuses you copyright infringement they will first contact you through the mail or email. You should consult with an attorney that specializes in copyright law to help you review the allegations of copyright infringement against you and create a strategy to move forward. An experienced copyright attorney might be able to help you negotiate with the person accusing you of copyright infringement and come to a mutually agreeable understanding, without the need for litigation.

If the copyright holder will not negotiate with you, a copyright attorney will be able to best advise you on the defenses you have to an accusation of copyright infringement.

Some defenses to copyright infringement are:

Independent creation – This is another way of saying that the copyrighted work was not copied. For instance if two different photographers take a photograph of a tree and the two photographs look identical, each photographer may claim copyright on their own photograph, but the two photographers may not sue each other for copyright infringement. Similarly two different computer programmers that write identical computer programs would not be able to sue each other for copyright infringement because they each independently created their programs. Copyright protects an author’s expression of an idea, not the idea itself.

Permission of the copyright owner – If the copyright holder gives a person a license to use a copyrighted work, then that person cannot be liable for copyright infringement because they have permission from the copyright holder. It should be noted that a license can be limited, for instance a license to possess and display a work protected by copyright does not also give you the right to copy the work. Also the identity of the copyright owner might not be clear, an author of a book might have sold the copyright of the book to a publisher, in that case the author cannot give permission.

Abandonment by the Owner – If a copyright holder abandons the copyright to a work, they cannot later sue people for 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. Again, it should be noted that the copyright holder and the author of a work could be two different people so the author claiming to surrender a work, does not necessarily mean the copyright has been abandoned.

Misuse by the Owner – If the copyright holder is misusing their copyright that may provide a defense to copyright infringement.

Statute of Limitations has expired – A copyright infringement lawsuit may be barred by the statute of limitations. In the United States a copyright infringement case must be filed with the court within three years of the time the owner of the copyright knows or should have known of the infringement. If the copyright owner waits too long they are not allowed to sue.

Fair Use of the Work – 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 include: parodies, satires, news reports, critiques, teaching, research, or reverse engineering. In determining whether something constitutes fair use, the purpose of the use will be considered, as well as the nature of the work, the proportion that is copyrighted, the effect on the market, and many other factors. The Fair use defense in copyright infringement cases in the United States is a very complex subject with subtle nuances. Also, trademark law also has a fair use defense, there are differences between a copyright fair use defense and trademark fair use defense of which you must be mindful. We will explore the fair use defense in more detail in a future blog post.

This is not an exhaustive list of the defenses your attorney might suggest you assert in a copyright infringement lawsuit.