Copyright: Registration, Infringement & Fair Use

In the last post in my IP Basics series, I discussed what’s copyrightable subject matter, exclusive rights for copyright owners, and duration of copyright protection. In this post, I’ll describe the benefits of copyright registration, how that relates to infringement, and the fair use defense for infringement claims.

Copyright Registration 

The author or owner of any or all exclusive rights in a work is able to register the work with the Copyright Office. To register, owners must complete an application form, pay a nonrefundable filing fee, and provide a copy of the work being registered to the Copyright Office.

Registration with the Copyright Office is voluntary but it’s a good idea to register for a few reasons. The primary benefit is that it allows the owner to sue for copyright infringement. And, if the registration is made in a certain time period, the owner is eligible for statutory damages, attorney’s fees, and costs -- potentially a large amount of money. Registration also permits the copyright owner to establish a record with the US Customs and Border Protection to protect against infringing copies from being imported into the US.  

Infringement Claims

An owner of an exclusive right in a copyrighted work may have an infringement claim if they can show someone else reproduced, made derivative works, distributed, publicly performed, or publicly displayed the work without the owner’s permission, unless there is a legitimate defense. 

A valid copyright claim by the owner must show that (1) the owner owned a valid copyright in the work or had an exclusive license, and (2) someone used one of those exclusive rights without permission, by showing they had access to the work and that their work is “substantially similar” to the copyrighted work.

As an alternative to suing in federal court, copyright owners can instead make a claim with the Copyright Claims Board, a 3 member tribunal set up by the Copyright Office, which can resolve copyright disputes for claims up to $30,000.

Damages

Generally, someone found liable for copyright infringement will have to pay either actual damages or statutory damages to the copyright owner. When a work has been registered with the Copyright Office, the copyright owner is eligible for statutory damages if certain requirements have been met. 

To establish the amount for actual damages, the copyright owner needs to show the actual economic damage they suffered and any profits that the infringer made from the infringement. This requires producing a lot of documentation and is onerous and difficult to show. Statutory damages, on the other hand, are calculated between $750-$30,000 per infringement for claims that are neither innocent nor willful. Statutory damages are generally much higher and require less documentation than calculating actual damages, and are hugely preferable for copyright owners for those reasons.

Fair Use

A common defense for a copyright infringement lawsuit is fair use. Fair use is a limitation on the copyright owner’s exclusive rights and is written in the Copyright Act. In certain categories of use, a “fair use” of a copyrighted work is not an infringement. These categories are: criticism, comment, news reporting, teaching, scholarship and research. A court will look at the facts and determine whether the alleged infringement falls into any of those categories and if so, whether the use is fair use, by considering all these factors together: 

• The purpose and character of the use 
• The nature of the copyrighted work 
• The amount and substantiality of the portion used in comparison to the whole of the work
• The effect of the use on the potential market for, or value of the copyrighted work 

The fair use doctrine has been fleshed out over many years in the federal court system. While there aren’t any hard and fast rules, here are some general trends: 

• Non-profit or educational use is more likely to be considered fair use, rather than commercial use.
• Use of more creative or imaginative works are less likely to be considered fair use than use of a factual work.
• The court looks at how much of the work was used and what aspects of it were used. Small amounts of work taken are more likely to be considered fair use than when larger quantities are taken. However, if that small quantity is the “heart” of the work, a court may still find infringement.
• If it’s likely that the unlicensed work harms the existing or future market for the owner’s original work, such as by displacing sales, courts are less likely to consider the work fair use.

The Copyright Office created a Fair Use Index here for those curious to read more.