GRIFFIN COPYRIGHT MBU 2520 FALL 2019 chapter 10

MBU 2520 Spring 2018 - Eric M. Griffin
Copyright Infringement
1

COPYRIGHT Infringement
. What is Infringement?
Infringement occurs whenever someone exercises any of the copyright owner's
exclusive rights without permission to do so.
• Does NOT matter if there is a profit or not.
Section 501(a)
"Anyone who violates any of the exclusive rights of the copyright owner as provided
by sections 106 through 118, or who imports copies or phonorecords into the United
States in violation of section 602, is an infringer of copyright.
2

.
A single act can violate one or more rights (ex. Reproducing and Distributing a Song)
Examples of Infringement:
• If you record a song without the songwriter's permission, you have violated the
exclusive right of Reproduction
• If you then sell the recording on CD Baby, you have violated the exclusive right of
Distribution
3

. Key to infringement claim is proving that Defendant copied the
Plaintiff’s work.
(A plaintiff, the person who initiates the case, is responsible for
understanding how and where to bring the case to court, as well as for
proving the elements of her case)
Similarity alone is not a basis for an infringement claim. Especially with
music – since there is such a limited number of notes, chords, rhythms,
etc.
4

.
Who can sue for infringement?
Generally the copyright owner or the exclusive licensee (the owner of
less than all of the exclusive rights can only sue for infringement on
those rights he or she owns)
EX. most publishers assign the right to print sheet music, thus if
another company started printing sheet music to the work, the
licensee could sue the infringing party w/o the publisher joining the
lawsuit
Prior to the 1976 Copyright Act, only the copyright owner could sue for
infringement. Because the work was indivisible
5

.Where can you sue for Infringement?
Federal District Court—b/c Copyright Act is a federal statute (law) and only federal courts
have jurisdiction over federal law; In the federal court where the defendant is located.
HOWEVER there are other types of potential lawsuits involving copyrights other than
infringement suits that can be brought in state courts. EX. Contract dispute between writer
and publisher
There are many types of disputes involving copyrights that do not actually involve any
interpretation of the Copyright Act: disputes over copyright ownership or the right to
receive royalties may often be contract disputes and do not usually involve
interpretations of the Copyright Act and would have to be filed in state rather than
federal court.
6

.
What to do if you think your work has been infringed?
Step 1. Send the infringer notice and a Cease and Desist letter. Try to
negotiate a settlement if possible
* From a practical standpoint, it is often more wise to settle a case than to
fight it. Litigation can b very expensive and difficult.
Step 2. File a lawsuit in Federal Court. (Sometimes filing alone is enough to
force a settlement.)
7

.How do you Bring a © Lawsuit?
Generally, only the copyright owner or the exclusive licensees of a work can sue
anyone who infringes upon the copyright owner's exclusive rights.The owner or the
exclusive licensee can only sue for infringement of the particular right that they own.
Prior to the enactment of the 1976 Copyright Act, only the copyright owner of a work
could sue for infringement because copyright ownership was indivisible. 1976 Act
provided that any "legal or beneficial owner of an exclusive right" can sue for
infringement of that right
8

.
Proving Infringement: plaintiff must prove that he/she owns or is the
exclusive licensee of the work that has been copied without permission
Prove 2 elements
1. ownership of valid copyright
2. copying of a copyrighted work without permission
9

.
Ownership:
The best way to establish a prima facie case of ownership is to present a
copyright registration certificate in court.The registration should have been
within 5 years of Publication.
If the work was not registered within five years of its publication, the plaintiff will
have to offer some other evidence of its ownership of copyright, such as
testimony, witnesses, other records.
10

.
COPYING: 2 common ways for copying to occur
1. infringer may directly copy the copyrighted work by duplicating it in some form
2. indirect evidence
(Direct evidence of copying is rarely available or easy to prove. Witnesses are rare.)
Copying is established by
1. Access to the copyrighted work by the alleged infringer; and
2. Substantial Similarity between the copyrighted work and the alleged infringer's work.
Access = the defendant had a reasonable opportunity to view or hear the copyrighted work
Circumstantial evidence can help the plaintiff by showing that your work is well known and
widely received. The bigger the song, the more likely access can be proved :
"a bare possibility of access is not enough; rather a plaintiff must show that the
defendant had a 'reasonable possibility' of access"
11

.Access = the defendant had a reasonable opportunity to view or hear the copyrighted work
1. ) ACCESS to copyrighted work—proven by
a) Direct evidence of access (alleged infringer acknowledges that he had access to the
copyrighted work; not the same as admitting that he copied though)
b) Circumstantial evidence of access
i)Work was well known and widely available to the public; or
ii) Work was specifically available to the alleged infringer
2.) SUBSTANTIAL SIMILARITY – proven by
a) No bright line / # of notes / # of bar
b) Imprecise concept—substantial is not defined in the Copyright Act, thus apply the
"Ordinary Observer" or lay listener test
c) Either or both parties may hire an expert witness (musicologist)
12

.
 Presumption of Copying: If the plaintiff proves access and
substantial similarity, the court will presume copying
A Copyright owner will often hire an expert witness called a musicologist.
A musicologist = a music theory expert
There must be an "improper appropriation” = the defendant must
appropriate elements of the work that are protected by copyright
Melody is usually the most memorable element of a song ...there are a
limited number of pleasing scales and chords 13

.
Fragmented Similarity
The copying of a relatively small but qualitatively important or crucial element can be
an appropriate basis upon which to find substantial similarity (6th Circuit Court,
Bridgeport Music v UMG)
An issue arising out of digital sampling cases: Different holdings in other courts—
Questioning when the similarity becomes substantial enough to constitute
infringement
When the defendant exactly copied the plaintiff’s work, but only copied a small portion
of the work as a whole. In such cases, copying is obvious and the only issue is whether
the copied portion is substantial in relation to the original work as a whole.
14

.
Fragmented Similarity
Fragmented literal similarity is where there is similarity but not necessarily of the
whole work. This comes into play where specific elements of a work are copied but
the overall work may be very different.Therefore, it could be a line, a paragraph, a
tree, a face, an arm, a few measures of music that are copied literally. The question
then becomes, at what point does the copying become substantial and therefore an
infringement. Again, there is no easy rule or test to decide as to the amount of
fragmented literal similarity permitted before substantial similarity kicks in and
infringement is found. In addition to looking at how much was copied (i.e. what
percent of a work, how many elements or square inches or the like) one also needs
to look at the quality of the taking. Was the copying of an important element of the
underlying work? Is it an important element of the new work? Is it an essential
element? The more important and essential the elements copied, the more likely
that a smaller amount of copying will be considered substantial similar. 15

.
Fragmented Similarity (EXAMPLE)
The standard infringement suit might involve the paraphrasing of
Shakespeare’s Hamlet, while the analogous fragmented literal similarity
case would involve the copying of only the “to be or not to be”
soliloquy. In such cases, the courts will analyze whether the copied
portion is either qualitatively or quantitatively substantial when
compared to the original work. If it is not, the taking is termed de
minimis. In the fragmented literal similarity cases, the analysis hones in on
a comparison of the fragment to the whole original work, while the
question in the standard case asks more generally whether the two works
are substantially similar.
16

.
Striking Similarity
Where the court concludes that the defendant infringed even when the plaintiff can't
prove access based upon the similarity between the works being so "striking" that
there is no reasonable possibility that the defendant independently created the work.
(rare)
17

.
There areTwoTypes of Liability for Infringement:
Direct liability and Secondary Liability
Direct Liability:
The person who actually commits the infringement in held liable.
Secondary Liability:
Third parties who aid, contribute to, participate in, or benefit from
infringement are held liable too
18

.
CONTRIBUTORY INFRINGEMENT: when a party has knowledge of the
infringing activity and induces, causes or materially contributes to the
infringing conduct of the another
2 REQUIREMENTS FOR CONTRIBUTORY INFRINGEMENT
1. Knowledge
a) Knowledge is usually established by notice (C&D)
2. Substantial Participation (but not necessarily intent)
Ex. Artist performs music at a venue or on a recording and the label
knew that the artist had no licenses to do so.
19

.
VICARIOUS INFRINGMENT
1. Defendant has the right and ability to control an infringer's activity
2. Defendant receives a direct financial benefit from the infringement.
(Direct knowledge and intent not required.)
Businesses should not be able to escape liability by using others to
actually commit infringing acts -while either pretending to be ignorant
or intentionally remaining ignorant of the infringing conduct. Such
businesses receive direct or indirect benefit=vicarious infringement
Imposes a duty to supervise the conduct of those you profit from.
EX. Bootleg sales at a market. Market owner also liable. Can’t use
ignorance as a method to profit.
20

.
Contributory andVicarious Liability are especially important with
Internet cases. There are many violators with direct liability, but small
pockets. In order to effective stop an infringing activity, the rights
holder must be able to go after the ISP or other party who helps make
the infringement possible and may profit from it.
21

.
Inducement liability - Inducement is considered one of the elements of
contributory liability. One infringes contributorily by intentionally
inducing or encouraging direct infringement
Concept imported from patent law by 2005 Grokster case:
(1) A new (third) type of secondary liability; also an element of contributory liability
(2) Unlike an inducement claim, a claim for contributory liability does not require a
showing that the defendant INTENDEDTO FOSTERTHE INFRINGEMENT.
22

.
Why are multiple forms of Liability so important?
Joint and Several Liability: “Everyone is fully responsible”
If a copyright owner wins an infringement suit, he can try to collect the
copyright's judgement from any of the losing parties. Copyright
lawsuits often include more than one defendant.
23

.
24
© 2015 The Primacy Firm PLLC
OWNERSHIP
Must prove that you are the
owner of the work that is
infringed.
How do you prove ACCESS?
The Path to Proving
COPYRIGHT
INFRINGEMENT
ACCESS
How do you prove ACCESS by
CIRCUMSTANTIAL Evidence?
….. OR ….
….. OR ….
COPYING
Must prove that there was an
unauthorized copying of a
copyrighted work
Work was well
known and
widely
available to
the public
….. AND ….
….. OR ….Direct Evidence of ACCESS
(alleged infringer acknowledges that he
had access to the copyrighted work;
not the same as admitting that he
copied though)
Circumstantial Evidence of
ACCESS
….. AND ….
You must prove
How do you prove COPYING?
If the work was NOT registered
w/in 5 years of initial publication,
plaintiff will have to offer some
other type of proof of ownership,
such as testimony
If the work was registered w/in 5
years of initial publication, court
will presume that the information
contained in the copyright
registration is valid.
….. OR ….
How do you prove OWNERSHIP?
SUBSTANTIAL SIMILARITY
No bright line / # of notes / # of bar
Imprecise concept—substantial is not
defined in the Copyright Act, thus apply
the “Ordinary Observer” or lay listener
test
Either or both parties may hire an
expert witness / musicologist
Work was available to
the alleged infringer
(Proven through
testimony)
Direct Evidence of
COPYING
The alleged infringer
acknowledges that he or she
copied the work
How do you prove COPYING by
CIRCUMSTANTIAL Evidence?
Circumstantial Evidence of
COPYING

GRIFFIN COPYRIGHT MBU 2520 FALL 2019 chapter 10

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GRIFFIN COPYRIGHT MBU 2520 FALL 2019 chapter 10