Defenses to Copyright Infringement

As in any other sort of civil lawsuit, the alleged wrongdoer can prevail in a copyright infringement claim by asserting a valid defense. Common defenses include:

1. Lack of Copyright Notice:

Under U.S. law before March 1, 1989, copyright owners were required to put a copyright notice on their works. The challenged party could assert failure to do so to nullify the ownership requirement of an infringement claim, as the work so published would have gone into the public domain. While the U.S.’s adoption of the Berne Convention Implementation Act on that date removed this strict requirement, it still applies to older copyrights, and prudent copyright owners still put copyright notices on their published works.

2. Lack of Originality:

Copyright only applies to original works of authorship. If you depict something in a mundane way without any creativity, you may not have sufficient originality to claim copyright in what you have produced. For example, seeing a red car parked outside and then writing “There is a red car in front of the house” uses virtually no creativity or originality. Nor would simply taking a snapshot of the car without staging the lighting and other aspects of the photo.

A graphic design that lacks originality cannot be copyrighted such as “©”. A prominent example was Best Western’s failed application to copyright its logo. (The hotel chain was able to register its “Best Western” design as a trademark however.)

The Supreme Court has held that mundane information, such as the names, addresses, phone numbers in telephone directories cannot be copyrighted. However, the selection and arrangement of such information may be sufficiently original to deserve copyright protection. While the threshold for originality is low, the more originality and creativity involved in the work, the more likely copyright protection will apply.

3. Nothing was Copied:

A news photographer and a fan who simultaneously take virtually identical shots at a concert would probably not have copyright claims against each other. Thus, if the professional sought to sue to protect his photograph, the fan could likely defend himself against that claim because he did not copy from the photographer’s photo.

4. Fair use.

This defense acknowledges the copyright owner has the right to protect his or her original work but asserts that the use was “fair,” for example a minimal quotation of the work in the context of a scholarly discussion. Fair use is a major topic in itself deserving of a separate and upcoming blog in this series.

If you have copyright issues on which you need assistance, please contact attorney Helena Kobrin.