What Are Common Defenses to Copyright Infringement?
Some common defenses to a claim of copyright infringement include fair use, independent creation, and public domain.
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Probably the most recognizable defense to copyright infringement, fair use allows those other than the author of an original work to build freely upon the ideas and information conveyed by that work. As stated by the Supreme Court in Sony Corp. of Am. v. Universal City Studios, Inc., “All reproductions of [a] work, however, are not within the exclusive domain of the copyright owner; some are in the public domain.” In evaluating whether a use of another’s copyrighted work is fair, Courts consider factors such as whether the use is for commercial or nonprofit educational purposes, the amount and substantiality of the portion of the original work used in relation to the work as a whole, and the effect on the use on the market value of the original work.
Somewhat related to the idea of fair use is public domain. Where the two defenses differ is that public domain argues the rights in the work are no longer present, rather than the use is permissible. Generally, a work is protected under copyright for the life of the author plus 70 years. This extra time after the author’s death allows their heirs to continue to profit and adds to the incentives grounding US copyright law. Sometimes, however, corporate entities are technically the authors of works and, given that they do not have a life in the biological sense, the rules differ. In that scenario, the copyright term is generally 95 years from the year of first publication or 120 years from creation, whichever comes first.
Independent creation is yet another common defense to a claim of copyright infringement. To prove their infringement, a plaintiff must show factual copying of their work. This requires proof that the defendant actually used the copyrighted material to create their own work. Absent direct evidence of copying, which is hard to come by, a plaintiff can raise an inference of factual copying from proof that the defendant had access to the copyrighted work prior to creation of the infringing work and probative similarity between the works in question. However, if the defendant can show they independently created their work, this will rebut the presumption of factual copying that arises from a plaintiff’s evidence of access and probative similarity. Thus, it can be a very powerful defense.
A business facing potential liability for copyright infringement would be wise to retain qualified and experienced counsel to best asses potential defenses. For more information on copyright law, and intellectual property in general, see our copyright services practice page.
Klemchuk PLLC is a leading IP law firm based in Dallas, Texas, focusing on litigation, anti-counterfeiting, trademarks, patents, and business law. Our experienced attorneys assist clients in safeguarding innovation and expanding market share through strategic investments in intellectual property.
This article is provided for informational purposes only and does not constitute legal advice. For guidance on specific legal matters under federal, state, or local laws, please consult with our IP Lawyers.
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