If you are the holder of a copyright, you own an exclusive bundle of rights that allows you to exclude others from using your copyrighted work. As set forth in the Copyright Act codified in the U.S. Code, a copyright holder has exclusive right to do or 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;
4. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
5. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
6. in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
In the event someone has infringed a copyright you own, you must satisfy two elements to maintain a lawsuit for copyright infringement. First and foremost, you must prove that you own a valid copyright. In the U.S., a copyright arises upon creation – it is not necessary to register the work in question for the copyright to exist, so you will own a valid copyright merely by creating the work in question. [That does not mean, however, that registration should be considered either unimportant or inconsequential. On the contrary, copyright registration has a number of benefits, chief among them the right to seek statutory damages and attorney’s fees in the event of an infringement.]
It may come as little surprise that the second element of a copyright infringement claim is copying of the copyrighted work. While copying may be obvious, such as direct copying of a work, it is oftentimes a little more difficult to establish the copying element because there is no direct evidence of copying. In those situations the copyright holder may argue that copying is inferred from the surrounding circumstances, such as when an alleged infringer has access to the copyrighted work and produces a resulting work exhibiting a number of substantial similarities.
Given that many infringers may not have collectible assets in the event of a successful infringement claim, it is important to keep in mind that copyright infringement actions may exist against parties other than the infringer on secondary or vicarious liability grounds. Contributory infringement actions typically occur when an individual or entity has knowledge of the infringing activity of another and induces, causes, or materially contributes to that infringing activity. This may occur when the contributing party has control or supervision over the infringer, provides material support to the infringer, or receives some sort of financial benefit from the infringing activity.
Given the enormous amount of copyrighted information available on the internet, the Digital Millennium Copyright Act (DMCA) was enacted to clarify copyright law in cyberspace and offer safe harbors to online and internet service providers that host websites posting infringed copyrighted materials. Under the DMCA, an online provider may avoid vicarious liability if it responds quickly to notices to “take down” copyrighted material. The DMCA contains a process for notifying and contacting internet service providers that are hosting infringed materials and it is vital to follow the process in order to preserve all possible claims.
In light of the speed and ease at which copyrighted material can be copied and posted on the Web, it is important for copyright holders to be vigilant in ensuring their copyrights are not violated. And, when copyrighted material is infringed on the Internet, it is also important for copyright holders to follow the provisions of the Digital Millennium Copyright Act. To learn more about copyright infringement actions, including the steps necessary to stop infringing activity in cyberspace, please contact Bob Byrne.
Robert E. Byrne, Jr., the author of this article, is an attorney with the Charlottesville, Virginia law firm of MartinWren, P.C. Bob practices throughout Central Virginia in commercial and business litigation with an emphasis on intellectual property litigation, including and trademark infringement litigation. For more information regarding copyright infringement actions, please contact Bob at 434-817-3100.