Someone once said that imitation is the sincerest form of flattery. It’s probably a safe assumption that this person never dealt with copyright violation.

Owning the copyright to your work grants you exclusive rights to recreate the work, publish it, perform it, and distribute it. If someone else engages in any of these acts without your permission, you may have a valid copyright infringement claim.

In this article, you will learn the elements required to prove copyright violation in court, what damages you may be entitled to if the court rules in your favor, and how you can recover those damages.

Was Your Copyright Violated?

The onus of policing copyright violations falls on you as the copyright owner. Unlike traditional crimes, the government does not proactively monitor copyright infringement. If someone violates your copyright and you don’t respond in a timely manner, this person will likely continue to infringe upon your exclusive rights. Our copyright attorneys at Robinson & Henry can help you regain control of what is rightfully yours. Call 303-688-0944 today to schedule a legal case assessment.

Elements of a Copyright Infringement Claim

Infringement is the legal term for copyright violation. In order to prove copyright infringement, you must:

• establish legal ownership of a valid copyright
• prove that the infringing party had access to your copyrighted work
• prove that the infringing party had the opportunity to steal that work
• prove that protected elements of the original work have been copied

Establish Ownership

A successful infringement claim starts with you asserting that you own a valid copyright in the work. If you have formally registered your copyright with the U.S. Copyright Office, this element should be easy to satisfy. If not, you may be out of options, legally speaking.

Proof of Actual Copying

After showing that you have exclusive rights to your copyright work, you now must prove that the opposing party violated those rights. This is relatively easy in some cases, such as the online display of your copyrighted photograph or the broadcast of a copyrighted video. Those are examples of direct proof.

Substantial Similarity

If the copying was indirect, your case becomes a bit more challenging. This is where substantial similarity comes into play. However, you must prove access and opportunity before courts will even look at the similarities between your work and the alleged infringer’s.

Access and Opportunity

Access is proven when you show that this person had an opportunity to listen to or copy your work. This opportunity must be a reasonable opportunity, not a bare possibility in the sense that anything is possible.

This is easy if your work has been widely disseminated. For example, everyone has probably heard “Stairway to Heaven” on the radio. However, not everyone has produced a number-one hit song. Therefore, you’ll likely have to show a chain of events establishing a link between your work and the opposing party’s access. Maybe you sent your work to this person — or their friend or coworker — for review.

You are not required to prove that this individual definitively saw or heard your work — only that it is reasonably possible for them to have done so.

A Famous Example

In the 2009 Supreme Court case Jones v. Blige, two music producers sued hip-hop artist Mary J. Blige for copyright infringement. The men claimed that Blige’s 2001 song “Family Affair” infringed on their own work. They based their theory of access on the fact that they submitted a demo CD of their copyrighted song to an executive at Blige’s publishing company; that the rejected demo CD’s packaging had been opened when it was returned to them; and that the company then published the song.

A Michigan district court found, however, that the producers did not establish a direct link between their work and Blige’s access to it. The court subsequently ruled in Blige’s favor.

Evaluating Substantial Similarity

The Tenth Circuit Court of Appeals evaluates substantial similarity using the abstraction/filtration/comparison test — which most circuits reserve for cases involving computer programs — in all copyright infringement cases.

Courts in the Tenth Circuit begin by separating the infringement analysis into two distinct inquiries:

(1) whether there is sufficient evidence of access and probative similarity to prove that the defendant copied

(2) whether the alleged infringer took enough of the copyright owner’s protected material to be guilty of infringement.

The Tenth Circuit tests probative similarity by comparing all elements of the works — not just the protected elements — to determine whether there are similarities probative of copying.

Inverse Ratio Rule

The Tenth Circuit weighs access and probative similarity on a sliding scale. You will be required to present less evidence of access when there is more evidence of similarity. If the court finds that the two works are strikingly similar, you will not need to prove that the defendant had access to your work at all. This is known as the inverse ratio rule.

Abstraction-Filtration-Comparison Test

If the Tenth Circuit finds sufficient evidence of copying, the court will apply the abstraction-filtration-comparison test to assess whether the protected elements of your work have been infringed on. Here, the court compares the works in the form in which they are presented to the public.

In Country Kids ’N City Slicks, Inc. v. Sheen, the Tenth Circuit described the abstraction-filtration-comparison test as follows:

At the abstraction step, we separate the ideas (and basic utilitarian functions) which are not protectable, from the particular expression of the work. Then, we filter out the non-protectable components of the product from the original expression. Finally, we compare the remaining protected elements to the allegedly copied work to determine if the two works are substantially similar.

In this case, toy company Country Kids ’N City Slicks, Inc. sued Vicki and Bill Sheen for infringement of its copyrighted wooden dolls. The plaintiff claimed that the Sheens had copied the size, shape, and medium of its dolls. The Tenth Circuit affirmed the district court’s ruling that each of those elements was unprotectable and must be filtered out.

Nevertheless, the Tenth Circuit remanded the case to the district court for proper comparison analysis. It held that the district court was wrong to require that the Sheens’ doll be a “virtual copy” of the plaintiff’s to be infringing.

Rather, the Tenth Circuit clarified that the comparison portion of the inquiry is to be conducted using the ordinary observer test: “whether the accused work is so similar to the plaintiff’s work that an ordinary reasonable person would conclude that the defendant unlawfully appropriated the plaintiff’s protectable expression by taking material of substance and value.”

Simply put, if a total stranger is unable to distinguish between the new material and your original work, it is unlikely that a jury will be able to do so either.

The Tenth Circuit stressed that the ordinary observer test is qualitative rather than quantitative. Even if the amount of protected material taken is quantitatively small, if it is qualitatively important, there can be infringement.

Copyright Infringement Remedies

It shouldn’t come as a surprise that copyright infringement can be detrimental to your bottom line. Here are some legal actions you can take to remedy that.

Send a Cease and Desist Letter

In order to demand a person stop violating your copyright, you can send a cease and desist letter. This letter will detail the acts of copyright infringement and ask the other person to stop these actions by a certain date.

Injunctive Relief

An injunction is a legally binding action that aims to prevent or restrain infringement by addressing future conduct rather than past actions. Courts may award a temporary injunction if you can demonstrate that you have suffered an irreparable injury that no legal remedy can fully compensate.

A permanent injunction may be warranted if, in addition to those two factors, you can show that doing so would not harm the public interest.

Filing a Lawsuit

If neither of these actions is effective, you may need to file a lawsuit. There are several remedies available if you choose this route:

• Actual damages
• Statutory damages
• Attorney’s fees and costs

Actual Damages

At any time before judgment is rendered, you can elect to receive actual damages. Actual damages can account for any reduced market value of your work caused by the infringement. You only need to prove the opposing party’s gross revenue. They are then responsible for reducing that amount by proving deductible expenses and profit that was not derived from their infringement of your copyrighted work.

Statutory Damages

The problem with actual damages, however, is that they are difficult to quantify and prove. As an alternative, you can seek statutory damages instead of actual damages. You can seek either one in a copyright infringement claim, but not both.

Statutory damages mean you could receive anywhere from $750 to $30,000 for each work that was infringed. If the court finds that the infringement was willful — meaning that the person was aware that he or she was infringing on your copyright — then statutory damages can rise to $150,000 for each work that was infringed. 17 U.S.C.S. § 504 

Importantly, statutory damages are only available if your work was registered within three months after it was first published. If your work is not published, you must have registered a copyright before the alleged infringement.

Attorney’s Fees and Costs

Courts may also award reasonable attorney’s fees and costs associated with the lawsuit. However, these are only available under the same conditions as statutory damages.

Whether or not you are awarded attorney’s fees will depend on the strength of your case and the amount of damages you received. If you are seeking attorney’s fees, you have the burden of proving that your request is reasonable.

Need Help With a Possible Copyright Infringement? 

It takes years to become an expert in the world of copyright. With new statutes and judicial precedent frequently being set, copyright is easily one of the most complex areas of intellectual property law. This is why you should utilize the wealth of knowledge and experience our copyright attorneys at Robinson & Henry, P.C. have to offer. Call 303-688-0944 today to schedule a legal case assessment.