There are two basic elements for proving copyright infringement:
  1. Ownership of the copyright; and

  2. Unauthorized Copying. 1
For an infringer to be liable, he must have “copied” the work from the owner of the copyright. If an accused infringer can prove they independently created the accused infringing work, this will be an absolute defense against infringement. 2

Copying of a work is difficult to prove, so the copyright owner normally has to prove (i) the infringer had access to the work, and (ii) that the two works are substantially similar from the viewpoint of the average observer. If the copyright owner can prove these two things, the burden then shifts to the accused infringer to prove independent creation.


Willful copyright infringement for the purposes of commercial advantage or private financial gain is a crime. 3 Only after federal registration of the copyright, 4 a civil action may also be brought by the copyright owner against the infringer for:
  1. Injunctive Relief; 5

  2. Seizure And Destruction of the infringing copies and articles used to make them; 6

  3. Actual Damages suffered by the copyright owner; 7

  4. Profits from the infringer; 8

  5. Statutory Damages at the copyright owner’s election for all infringements of any one work from $750 to $30,000 instead of actual damages and profits (if “willful” infringement is found, the amount of statutory damages may be increased up to $150,000.; 9 and

  6. Full Costs including reasonable attorney’s fees. 10


An accused infringer has various defenses that they may assert. Potential defenses include (i) fair use, 11 (ii) innocent infringement, 12 (iii) abandonment, 13 (iv) laches, 14 (v) statute of limitations, 15 or (vi) material uncopyrightability. 16 Any of the defenses may be used by the defendant, however, only fair use and innocent infringement will be discussed further in this material.

Fair use assumes a privilege in persons other than the copyright owner to use the prohibited work in a reasonable manner. 17 There are four factors to consider for fair use:
  1. Type Of Use (commercial, nonprofit, or educational);

  2. Nature Of Copyright Work (factual or creative);

  3. Portion Of Copyright Used in relation to the whole copyright work; and

  4. Effect On Value of the copyright work.
None of the above factors are decisive. However, the type of use has a significant impact in many cases. If the infringer is using the work for nonprofit or educational purposes, this is a strong defense against an infringement action.

Also, if the copyright work is factual in nature versus creative, fair use is more likely to be found since the law favors dissemination of facts. In addition, if the infringer copies the complete work, word for word, this creates a strong presumption of infringement. Finally, if the infringement has no effect on the market value of the copyright work, this should be taken into account.

Innocent infringement is a potential defense where the infringer did not have notice of the copyright. 18 The innocent infringer defense may be used when the defendant consciously and intentionally copies from the plaintiff’s work, believing in good faith that his conduct does not constitute an infringement of copyright. The “good faith” belief must be due to the omission of a copyright notice from an authorized copy of the work that is infringed. 19

In some circumstances, however, there is a “merger” of the idea and the expression of the idea, such that a given idea is inseparably tied to only one form of expression. In such instances, rigorously protecting the expression would confer a monopoly over the idea itself. To prevent that consequence, courts have invoked the “merger doctrine,” which prevents the copyright owner from suing an infringer.
  1. 17 U.S.C. §501.

  2. This is true even if the two works are identical.

  3. 17 U.S.C. §2319.

  4. 17 U.S.C. §§411 and 412.

  5. 17 U.S.C. §502.

  6. 17 U.S.C. §503.

  7. 17 U.S.C. §504(b).

  8. Id.

  9. 17 U.S.C. §504(c)(1); 17 U.S.C. §504(c)(2).

  10. 17 U.S.C. §505.

  11. 17 U.S.C. §107.

  12. 17 U.S.C. §405(b). Nelson v. PRN Prods., Inc., 873 F.2d 1141 (8th Cir. 1989).

  13. Bell v. Combined Registry Co., 536 F.2d 164 (7th Cir. 1976).

  14. Lotte Joplin Thomas Trust v. Crown Publishers, Inc., 592 F.2d 651 (2d Cir. 1978).

  15. 17 U.S.C. §507(b). The statute of limitations for a claim of infringement is three years from the date the infringement begins.

  16. Grove Press, Inc. v. Collectors Publication, Inc., 264 F.Supp. 603 (C.D. Cal. 1967).

  17. 17 U.S.C. §107. It has been held that a manufacturer of home videotape machines was not contributorily liable for selling the machines to consumers who used them to copy plaintiffs’ copyrighted motion pictures off the air from television broadcasts. The Court reasoned that people can make copies in their home as long as they are made for their own personal use or time delaying of the actual viewing of the movie. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).

  18. 17 U.S.C. §405(b).

  19. Steven Greenberg Photography v. Matt Garrett’s of Brockton, Inc., 816 F. Supp. 46, 48 (D. Mass. 1992) (the defense is not available if copied from an unauthorized copy).