What Constitutes Copyright Infringement

To prove copyright infringement, a plaintiff generally must show two elements:

1. Ownership of a valid copyright. Registration with the U.S. Copyright Office is not strictly required to own a copyright, but it is required before filing a lawsuit (17 U.S.C. § 411(a)).

2. Copying of original elements of the work. Copying may be direct (admission, exact duplication) or indirect (access + substantial similarity).

Factors Courts Consider

• Access: Did the defendant have a reasonable opportunity to view or copy the work?

• Substantial Similarity: Would an ordinary observer recognize protectable elements as copied?

• Protected vs. Unprotected Expression: Copyright covers original expression, not ideas, facts, or common phrases (the “idea-expression dichotomy”).

• Fair Use Defense (17 U.S.C. § 107): Courts weigh:

  1. Purpose and character of the use (commercial vs. educational, transformative vs. verbatim)

  2. Nature of the copyrighted work (factual vs. creative)

  3. Amount and substantiality of the portion used

  4. Effect on the market for the original

• Independent Creation: A defendant can escape liability by proving they independently created the work.

Plaintiff Strategy in Copyright Cases

For copyright owners, litigation begins well before trial. Key strategies include:

• Register Early: Registration strengthens your case and is required for statutory damages and attorney’s fees.

• Demand Letters: Often the first step—putting infringers on notice and opening settlement dialogue.

• Selecting Venue: Most cases are filed in federal court.

• Injunctions: Plaintiffs often seek immediate injunctive relief to stop ongoing infringement.

• Evidence Gathering: Collect registration certificates, prior drafts, proof of publication, and documentation of copying.

• Damages Strategy: Plaintiffs decide whether to pursue actual damages (lost profits + infringer’s gains) or statutory damages.

Tactical Considerations

• Public Relations: Plaintiffs must weigh reputational impact. Aggressive litigation against small users (e.g., fan art) may spark backlash.

• Settlement vs. Trial: Many plaintiffs leverage strong registration and evidence to negotiate early settlements.

• Expert Witnesses: Used to show originality, similarity, or financial harm.

Defendant Strategy in Copyright Cases

Defending against a copyright infringement claim requires creativity and precision.

Key Defenses

• Non-Infringement: Argue lack of substantial similarity or access.

• Independent Creation: Provide drafts, timestamps, or testimony proving originality.

• Fair Use: Especially potent in cases involving criticism, parody, education, or transformative use.

• Invalid Copyright: Challenge validity—was the work truly original or protectable?

• De Minimis Use: Argue copying was so minimal it is not actionable.

Offensive Moves

• Declaratory Judgment: If threatened but not sued, defendants can file first, choosing a favorable forum.

• Counterclaims: Alleging misuse of copyright, anticompetitive behavior, or seeking cancellation of registration.

Expert Support

Defendants frequently use experts to:

• Dissect works, highlighting differences

• Provide surveys on consumer perception

• Analyze markets to show minimal harm

Examples of Famous Copyright Cases

• Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith (2023). This decision drew headlines—and a bit of courtroom drama—for its narrow but impactful ruling on transformative use under fair use analysis. The Court concluded that Warhol’s use of a photograph of Prince (by Goldsmith) was not transformative, as the alterations were too minimal and served a similar commercial purpose. It tightened the standard for when visual art transformations cross into fair use territory.

• Feist Publications v. Rural Telephone Service Co. (1991): The Supreme Court held that mere facts (like phone book listings) are not copyrightable, reinforcing the originality requirement.

• Campbell v. Acuff-Rose Music, Inc. (1994): The Court upheld 2 Live Crew’s parody of Roy Orbison’s “Oh, Pretty Woman” as fair use, expanding transformative use doctrine.

• Harper & Row v. Nation Enterprises (1985): Using 300 words from President Ford’s unpublished memoir was held infringing; publication rights and market harm mattered.

• Google LLC v. Oracle America, Inc. (2021): Google’s use of Java API in Android was held fair use, underscoring the role of transformation and innovation.

• Sony Corp. v. Universal City Studios (1984): Home videotaping for time-shifting was deemed fair use, legitimizing VCRs.

Potential Costs to Defendants

The risks of losing a copyright case are significant.

Damages

• Actual Damages + Profits: Compensate the copyright holder and disgorge infringer’s profits.

• Statutory Damages (17 U.S.C. § 504): Range from $750 to $30,000 per work; up to $150,000 per work for willful infringement.

• Treble Damages: In some contexts, courts enhance damages for willfulness. That basically means the defendant was aware of the plaintiff’s use and created their own infringing use anyway — and maybe even in bad faith.

• Attorneys’ Fees: Courts may award prevailing plaintiffs their fees. In a full case to trial, such fees can be significant. One of our founders remembers a veteran copyright attorney telling him, long ago, “Copyright litigation is the sport of kings.”

Reputational Harm

Copyright lawsuits can tarnish reputations, particularly if the infringer is portrayed as exploitative or dishonest.

Injunctions

Courts can halt distribution, destroy infringing goods, or bar continued use—sometimes crippling for defendants.

Plaintiff’s Typical Costs

• Registration Fees: Relatively low (around $45–$125 per filing).

• Attorney’s Fees: Substantial in litigation; IP litigation hourly rates often exceed $500/hour.

• Expert Witnesses: Costs can reach tens of thousands of dollars.

• Discovery and Motion Practice: Depositions, document review, and briefing add up quickly.

Despite these costs, strong cases can be handled on contingency by firms confident in recovery.

Necessity of Registering Before Suit

While copyright arises automatically upon creation, registration is a prerequisite to filing suit (17 U.S.C. § 411(a)). More importantly, registration unlocks statutory damages and attorney’s fees. Without registration, plaintiffs are limited to actual damages, which may be harder to prove.

Contingency Fee Potential

Copyright cases can be attractive contingency matters under certain conditions:

• Clear Liability: Strong similarity and evidence of copying.

• Commercial Scale: Defendant gained significant profits.

• Multiple Works: Larger exposure if multiple works were infringed.

• Registration in Place: Statutory damages make cases more predictable.

Firms are less likely to take cases on contingency if damages are speculative, if works are unregistered, or if the defendant is judgment-proof (that is, it would be hard to collect any damages). But for plaintiffs with strong registrations and clear infringement, contingency arrangements are viable.

Conclusion: Navigating Copyright Infringement

Copyright infringement litigation is high-stakes for both sides. Plaintiffs must balance the desire to protect their creations against costs and reputational risks. Defendants must weigh defenses carefully and understand the exposure of statutory damages, treble damages, and attorney’s fees. With creativity, strategy, and experienced counsel, both plaintiffs and defendants can navigate these waters—whether to secure protection for creative works or to defend against overreaching claims.