What is Copyright Infringement?

by feldmanwallach

by Jason Feldman, Partner, Feldman & Wallach, www.feldmwanwallach.com

Where a party uses the work of another without its express written permission, authorization or consent that party may be in violation the United States Copyright Act.

The owner of a copyright has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.

Anyone who violates any of the exclusive rights of the copyright owner by copying, modifying and/or reproducing a party’s work is considered an “infringer” of the copyright as well as an “infringer” of the rights of the author.

In order to prevail on a claim for copyright infringement, a Plaintiff must initially show that the application has been filed and either factual evidence of copying or that the defendant had access to the copyrighted work and that the offending and copyrighted works are so similar, that the Court may infer that there was factual copying. A Plaintiff need only then prove that the works are “substantially similar.”

Damages for Infringement.

The owner of the exclusive rights granted under the Act may institute an action for damages for infringement. The owner may seek “Statutory Damages” for each and every infringement committed by the company.

“Statutory Damages” allow for the recovery of damages per infringement in a sum of not less than $750 or more than $30,000.  In an instance, however, where the copyright owner can sustain the burden of proving that the infringement was committed willfully, the court may increase the award of statutory damages to a sum of $150,000.

This can add up.  For example, concerning infringement of a software program, infringement occurs each time the software is installed on a defendant’s computer without the authorization of the copyright owner. In addition, an infringement occurs each time the software is “booted up.” In other words, for purposes of the statute, an infringement occurs every time the software is loaded from some storage medium, such as a diskette or a computer’s hard drive, into the computer’s random access memory (RAM). Thus, an infringement occurs each time the computer bearing the unauthorized software is activated.

Finally, a Plaintiff may also recover costs and reasonable Attorney’s Fees. See Title 17 USC Section 505.

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