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What Is A Copyright?

Copyright is a form of protection provided to the authors of “original works of authorship” including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. The 1976 Copyright Act generally gives the owner of copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly.

Copyrights are registered by the Copyright Office of the Library of Congress

Benefits And Advantages Of Prompt Federal Registration.

Significantly, federal registration is mandatory for works of U.S. origin before an infringement action may be initiated. In addition, a certificate of registration obtained within the first five years of publication is prima facie evidence of the validity of the copyright and of the facts stated in the certificate. Federal registration prior to infringement allows the owner to recover statutory damages, even if actual damages cannot be proven, and attorneys' fees. However, if infringement of an unpublished work has commenced prior to registration, the ability to obtain damages is limited, namely, there can be no award of statutory damages or attorneys’ fees. In comparison, if infringement begins after publication of a work but prior to registration, a copyright owner may still register the work within three months after the first publication and obtain statutory damages and attorneys’ fees. Federal registration also entitles a registrant to request Customs to stop the importation of infringing articles into the U.S.

Copyright Infringement

The owner of a copyright has the exclusive right to reproduce the copyrighted work in copies, to prepare derivative works based upon the copyrighted work, to distribute copies of the copyrighted work to the public and to display the copyrighted work publicly. Anyone who violates any of these exclusive rights, even unintentionally, is an infringer of the copyright.
Definition of a Derivative Work

A derivative work is one that is based upon a preexisting work, in which the preexisting work is recast, transformed, or adapted. Examples of derivative works include editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship.

Elements of Copyright Infringement

In order to succeed on its claim for copyright infringement, a claimant must establish by a preponderance of the evidence the following:

1. That it owns valid copyrights in the work; and

2. That an accused infringer copied claimant’s work.

First Element – Ownership of Valid Copyrights

In order to establish ownership of valid copyrights in each of its works, a claimant must show that:

1. Each work is the independent creation of the claimant, i.e. it originated with the claimant and was not copied from other works; and

2. Each work is creative, that is, it contains a modest amount of intellectual labor. Only a very slight amount, or a “modicum” of creativity is required for a work to be copyrightable.

In determining whether the works at issue are sufficiently creative, one must consider them as a whole. Moreover, it is not necessary that each of the individual aspects of these works be creative in itself, as long as those elements have been combined and arranged in a matter indicating some ingenuity.

Second Element – Copying by Defendant

If there is no direct evidence of copying, the claimant may prove that the alleged infringer copied its work by showing that

1. The alleged infringer had access to each work; and

2. That the alleged infringer’s works are substantially similar to the claimant’s works.


If there is a reasonable possibility that the alleged infringer had an opportunity to view the claimant’s works prior to the time the alleged infringer created the works accused of infringement, then one must find that the alleged infringer had access to the claimant’s works. The claimant may establish this element by showing that its works were widely disseminated to the public.

Substantial Similarity

The test for determining the similarity of copyrightable expression is whether the alleged infringer’s works are so similar to the claimant’s works that an ordinary reasonable person would conclude that the alleged infringer unlawfully appropriated the claimant’s protectable expression by taking material of substance and value. That is, whether the alleged infringer’s works have captured the total concept and feel of the claimant’s works.

In considering whether there is similarity of expression, you must separate the idea of the claimant’s works from the protectable expression of that idea, and keep in mind that the law prevents the copying of the protectable expression of the claimant’s works, and not the idea of the works.

Copyright Infringement - Willfulness

If you the alleged infringer has violated any of the claimant’s copyrights in its works, the judge or jury will then be asked to determine whether such infringement was willful. The judge or jury may find that infringement was willful if the infringer knew that its conduct was an infringement or if the infringer acted in reckless disregard of the claimant’s rights. In considering the issue of the infringer’s willfulness, the judge or jury may consider evidence that the infringer ignored the claimant’s notices about copyright protection, did not seek advice of an attorney, and passed the matter off as a nuisance.

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