What are the Elements of Copyright Infringement?
There are two essential elements to a claim for copyright infringement. First, the plaintiff must prove ownership of valid copyright. Second, the plaintiff must show the defendant’s copying of constituent elements of the copyrighted work that are original.
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Ownership of a Valid Copyright
As a sort of threshold matter, a plaintiff seeking to hold a defendant liable for copyright infringement must first show that it in fact owns a valid copyright. Copyright ownership is shown by proof of originality and copyrightability in the work as a whole, and by compliance with applicable statutory formalities.
Before a plaintiff may bring an action for copyright infringement, the copyright must first be registered with the United States Copyright Office (“USCO”). Under the Copyright Act, a certificate of registration is prima facie evidence both that a copyright is valid and that the registrant owns the copyright. The defendant may bring evidence to rebut this presumption of validity.
There is a timing component here. While you can register your work for a copyright and then bring suit for infringement after the infringement has occurred, waiting to register will put you at a disadvantage because you will not be eligible for statutory damages or attorneys’ fees based off that infringement. This is why it is important to register a work quickly after or concurrently with publication.
Copying of Constituent Elements of the Copyrighted Work that are Original
This second element has been referred to as “unauthorized copying” and involves proving two things: (1) factual copying and (2) substantial similarity. Factual copying simply means that the defendant actually used the plaintiff’s copyright in creating its own infringing work. A plaintiff proves this by providing evidence, direct or circumstantial, that the defendant had access to the plaintiff’s copyrighted work prior to creating the infringing work and that the two works contain similarities probative of copying.
To determine substantial similarity, a side-by-side comparison must be made between the original work and the copy to determine whether a layman would view the two works as substantially similar. Sometimes, a work may contain unprotectable elements that the court must filter out before conducting the requisite analysis.
The creator of an original work should be knowledgeable as to the elements of copyright infringement and the implications of delaying registration. Seeking qualified counsel to aid in this process and knowledge can make all the difference.
For more information on copyrights and intellectual property in general, see our copyright services and intellectual property practices pages.
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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