Copyright Infringement Defense
As part of our Software & Copyrights practice, we provide copyright infringement defense services.It is important to know the steps to take when a company receives a copyright infringement notice. Retaining a copyright litigation attorney can make the difference between moving past the infringement notice quickly and triggering a more serious dispute. Additionally, getting served with a copyright infringement lawsuit may require quick action. Our attorneys advise clients regarding copyright infringement defense as well as defending against copyright infringement lawsuits.
Copyright Infringement Notices
A copyright infringement notice typically informs the recipient that they are allegedly infringing on the sender’s copyright. Such cease and desist letters demand the recipient cease the infringing activity immediately. The request may also threaten further legal action, such as copyright litigation, if the recipient does not comply. Sometimes these copyright infringement cease and desist notices are legitimate. However, a sender may be threatening an overly broad interpretation of the copyright at question. Regardless, the recipient should not simply ignore the copyright infringement notice. One should take copyright infringement defense seriously and handle the claim expeditiously to avoid further legal action.
Our copyright attorneys review the facts and assist with determining the validity of copyright claims. We provide opinions on best actions to take as well as assist clients in copyright infringement defense through settlement negotiation or litigation.
Defenses to Copyright Infringement Claims
Our copyright attorneys can assist defending against copyright infringement claims. Some examples of copyright infringement defense arguments are:
Fair use doctrine
Proof the work was independently created and not copied
Innocence (proving there was no reason to believe the work was copyrighted)
The use is with a license agreement in place (this can shift liability to the licensor)
Abandonment (a claim that the owner failed to enforce it’s rights, thereby abandoning the right)
Misuse of copyright by the copyright owner
Statute of limitations (the owner must file a suit within 3 years of knowing/should have known of infringement)
Note a copyright claimant must prove the following three elements, to win an infringement claim:
A valid copyright exists (Registration provides a presumption of validity)
The defendant copied the work without authorization
The infringing work is substantially similar to the protected work
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Digital Rights Management: Digital Rights Millennium Copyright Act (DMCA)
Copyright holders may also send service providers a takedown notice under the Digital Millennium Copyright Act (DMCA). These DMCA notices typically describe the infringing content, and ask it be taken off of the service provider’s website. The DMCA helps protect intellectual property holders from copyright piracy. However, it also provides safe harbors for Internet service providers and website owners. The owners must appoint a DMCA Agent to review the takedown notices for legitimacy and expeditiously handle takedowns for the safe harbor protection. Our copyright lawyers assist with registering DMCA Agents with the U.S. Copyright Office. Additionally, we provide guidance in developing infringement review and takedown processes.
Even with these safe harbor protections in place, website owners and ISPs can still face copyright infringement defense issues. We defend clients against all forms of copyright infringement claims.
Understanding the Stakes: What Happens If a Claim Becomes Lawsuit
When an infringement notice escalates into a full lawsuit, the risks can become substantial. Depending on the nature of the claim, a defendant may face demands for statutory damages, actual profits of the plaintiff, attorney fees, and injunctive relief. Courts will examine factors such as whether the work was registered, whether copying was intentional or willful, and how similar the accused work is to the copyrighted work.
That’s why early action matters — preserving evidence, verifying the validity of the copyright and its ownership, assessing whether fair use or other defenses apply, and exploring settlement options may greatly affect both legal costs and exposure.
Proactive steps such as registering your works, maintaining clear documentation, having licensing or assignment agreements, and implementing strong internal review processes for content/publications can serve not only as defenses but also deterrents to future claims.
Local Counsel for Copyright Litigation
We also act as local counsel to out-of-state plaintiffs and defendants involved in copyright lawsuits filed in federal courts in Texas.
Read more about our litigation services at our intellectual property litigation overview page and our business litigation overview page, including Copyright Infringement Litigation.
See our local counsel litigation page for more details, including pro hac vice admission requirements for Texas federal courts, the Texas Lawyer's Creed, and additional information about Texas copyright litigation.
Frequently Asked Questions - Copyright Law
What should I do immediately after receiving a copyright infringement notice?
Respond promptly. Preserve all relevant evidence (files, communications, version histories). Consult with counsel to evaluate the claim’s validity and whether defenses (like fair use, independent creation, or license) apply.Can I settle a claim before it becomes a lawsuit?
Yes. Settlement or negotiation often reduces cost, risk, and public exposure. But settlement should be informed: you’ll want to understand the strength of the plaintiff’s registration, the similarity between works, and what damages might be sought if the case proceeds.Does registering my work help in a defense?
Yes. Copyright registration is powerful. In many cases, registration (if timely) provides a presumption of validity. It also may be required for certain types of damages (statutory damages, attorney’s fees) and in some jurisdictions for filing suit.What are common defenses against copyright infringement claims?
Some frequent defenses include:Fair use
Independent creation (no copying)
Innocent infringement (no knowledge of the work)
License or permission
Statute of limitations (the claim is brought too late)
Abandonment or failure of the owner to enforce
Is there a deadline (statute of limitations) for a copyright claim?
Yes. Under U.S. law, copyright owners generally must initiate a lawsuit within three years of when they first knew or reasonably should have known about the infringement. If the claim is filed too late, it can be dismissed as time-barred.What is “substantial similarity,” and why does it matter?
In a lawsuit, one key question is whether the accused work is substantially similar to the copyrighted work. Courts look at how much detail is copied—not just ideas, but expression, structure, selection of similar elements. Substantial similarity is often crucial to proving liability.
Further Reading for Copyright Legal Issues
Defending Against Photograph Copyright Troll Infringement Cases — practical steps for defending when demands are made about photograph use.
What are Copyright Infringement Damages? — breakdown of damages available, from actual to statutory, and what plaintiffs can recover.
Copyright Ownership Problems: Are You Sure You Own Your Copyrights? — issues around ownership, work-for-hire, assignments, and why ownership is sometimes unclear.
Copyright Protection — how to protect creative works, including registration, licensing, and enforcement strategies.
Additional Insights Regarding Copyright Infringement Defense Legal Issues
For more information on copyright infringement law, see our Legal Insights and Industry Solutions pages.