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Litigating 
Copyright Infringement 
Presented By: 
Maria Crimi Speth 
Jaburg & Wilk, P.C. 
© 2014 Jaburg & Wilk, P.C.
Legal Rights As Copyright Owner 
 Exclusive right to: 
– copy 
– create derivative works 
– distribute 
– publicly displa...
Elements of Claim for Infringement 
Owner of a valid copyright; and 
Defendant copied original elements of the 
copyrighte...
Ownership 
Copyright in a work vests initially in the author or 
authors of the work. 
17 U.S.C. §§ 201. 
Practice Tip: In...
Author is the Creator - Except 
 Assignment or transfer of the copyright in 
writing 
Works for Hire 
Practice Tip: Assi...
Works For Hire 
 A work prepared by an employee in the scope 
of employment 
 A work specially commissioned in one of ni...
Transferring Copyrights 
Work for hire 
Written assignment of ownership 
 Licenses 
 Publishing rights 
 Involuntary ...
Transferring Copyrights 
Transfers should be recorded with the copyright 
office. 
Inconsistent transfers are governed by ...
Presumptions 
Registration of the copyright entitles the 
registrant to a “rebuttable presumption of 
originality” for the...
Copyrightable 
There must be at least a minimal degree of 
creativity. 
Feist Publications, Inc. v. Rural Telephone 
Servi...
Merger Doctrine 
Where the work can be expressed only in one 
way, work’s idea and expression “merge.”
Copied Original 
Elements of the Work 
Elements – indicates any part 
A showing that the defendant “unlawfully 
appropriat...
Proving Copying 
Direct Evidence 
– Admission 
– Witness
Proving Copying 
“A plaintiff can indirectly prove copying by 
establishing that Defendants had access to the 
copyrighted...
Proving Copying 
“The question of whether Defendants infringed 
on Plaintiff's copyright turns on whether 
Defendants' pro...
Degree of Access 
A greater showing of access requires less of a 
showing of substantial similarity. 
Sid & Marty Krofft T...
Proving Access 
A plaintiff may meet the initial burden of 
establishing access “by showing that the 
defendant had a reas...
Proving similarity – 
in light of the merger doctrine 
Where the protected work and the accused work 
express the same ide...
Comparing Works 
Filter out the unprotectable elements of a work and focus 
on protectable portions of the original work. ...
Injunctive Relief 
There is a presumption of irreparable injury at the 
preliminary injunction stage once a copyright 
inf...
Is the Presumption Gone? 
eBay Inc. v. MercExchange, L.L.C., 547 U.S. 
388, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006) 
Injunc...
Is the Presumption Gone? 
eBay has been applied to copyright cases: 
Perfect 10, Inc. v. Google, Inc., 653 F.3d 976, 
981 ...
Indirect Liability 
Both contributory and vicarious infringements 
require someone to have directly infringed the 
copyrig...
Vicarious Infringement 
Vicarious infringement’s roots lie in the agency 
principles of respondeat superior. 
The right a...
Contributory Infringement 
A person is liable for copyright infringement by 
another if the person knows or should have 
k...
Damages 
 Actual damages 
 Statutory damages 
17 U.S.C. §504
Actual Damages 
The copyright owner is entitled to recover the 
actual damages suffered by him or her as a 
result of the ...
Actual Damages 
In establishing the infringer’s profits, the 
copyright owner is required to present proof only 
of the in...
Copyright Registration 
www.copyright.gov 
 Must be registered to file a lawsuit 
 Presumption that you are the owner 
...
Statutory Damages 
$750 to $30,000 per work infringed 
Up to $150,000 if copyright owner proves willful 
Down to $200 if i...
Fair Use Defense to Infringement 
–Can not in any way interfere with author’s ability to 
benefit from the work 
–Small po...
On-line Issues 
 DMCA 
 Agent for service of notices
Litigating 
Copyright Infringement 
Presented By: 
Maria Crimi Speth 
Jaburg & Wilk, P.C. 
© 2014 Jaburg & Wilk, P.C.
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Copyright Litigation Seminar by Maria Crimi Speth

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Phoenix business law firm Jaburg Wilk Intellectual Property attorney and author of Protect Your Writing's Maria Crimi Speth presents on copyright litigation.

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Copyright Litigation Seminar by Maria Crimi Speth

  1. 1. Litigating Copyright Infringement Presented By: Maria Crimi Speth Jaburg & Wilk, P.C. © 2014 Jaburg & Wilk, P.C.
  2. 2. Legal Rights As Copyright Owner  Exclusive right to: – copy – create derivative works – distribute – publicly display Practice Tip: counsel clients on derivative works
  3. 3. Elements of Claim for Infringement Owner of a valid copyright; and Defendant copied original elements of the copyrighted work. Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991)
  4. 4. Ownership Copyright in a work vests initially in the author or authors of the work. 17 U.S.C. §§ 201. Practice Tip: Investigate originality.
  5. 5. Author is the Creator - Except  Assignment or transfer of the copyright in writing Works for Hire Practice Tip: Assignment must be clear and unequivocal
  6. 6. Works For Hire  A work prepared by an employee in the scope of employment  A work specially commissioned in one of nine specific categories when there is a written agreement stating that it is a work for hire 17 U.S.C. §201 Practice Tip: Owners are often not employees
  7. 7. Transferring Copyrights Work for hire Written assignment of ownership  Licenses  Publishing rights  Involuntary transfers are void 17 U.S.C. §201
  8. 8. Transferring Copyrights Transfers should be recorded with the copyright office. Inconsistent transfers are governed by 17 U.S.C. §205
  9. 9. Presumptions Registration of the copyright entitles the registrant to a “rebuttable presumption of originality” for the Works. Ets–Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1075 (9th Cir.2000).
  10. 10. Copyrightable There must be at least a minimal degree of creativity. Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991)
  11. 11. Merger Doctrine Where the work can be expressed only in one way, work’s idea and expression “merge.”
  12. 12. Copied Original Elements of the Work Elements – indicates any part A showing that the defendant “unlawfully appropriated protected portions of the copyrighted work. La Resolana Architects, PA v. Reno, Inc., 555 F.3d 1171, 1178 (10th Cir. 2009)
  13. 13. Proving Copying Direct Evidence – Admission – Witness
  14. 14. Proving Copying “A plaintiff can indirectly prove copying by establishing that Defendants had access to the copyrighted work and that there are probative similarities between the copyrighted material and the allegedly copied material.” La Resolana Architects, PA v. Reno, Inc., 555 F.3d 1171, 1178 (10th Cir. 2009)
  15. 15. Proving Copying “The question of whether Defendants infringed on Plaintiff's copyright turns on whether Defendants' product is substantially similar to the protectable elements of Plaintiff's product.” Country Kids 'N City Slicks, Inc. v. Sheen, 77 F.3d 1280, 1284 (10th Cir. 1996)
  16. 16. Degree of Access A greater showing of access requires less of a showing of substantial similarity. Sid & Marty Krofft Television Prods., Inc. v. McDonald's Corp., 562 F.2d 1157, 1162 (9th Cir. 1977).
  17. 17. Proving Access A plaintiff may meet the initial burden of establishing access “by showing that the defendant had a reasonable opportunity to view or [an] opportunity to copy the allegedly infringed work. La Resolana Architects, PA v. Reno, Inc., 555 F.3d 1171, 1178 (10th Cir. 2009)
  18. 18. Proving similarity – in light of the merger doctrine Where the protected work and the accused work express the same idea, the similarity that inevitably stems solely from the commonality of the subject matter is not proof of unlawful copying. Country Kids 'N City Slicks, Inc. v. Sheen, 77 F.3d 1280, 1285 (10th Cir. 1996)
  19. 19. Comparing Works Filter out the unprotectable elements of a work and focus on protectable portions of the original work. “Even if the similar material is quantitatively small, if it is qualitatively important, the trier of fact may properly find substantial similarity.” Country Kids 'N City Slicks, Inc. v. Sheen, 77 F.3d 1280, 1287 (10th Cir. 1996)
  20. 20. Injunctive Relief There is a presumption of irreparable injury at the preliminary injunction stage once a copyright infringement plaintiff has demonstrated a likelihood of success on the merits. Country Kids 'N City Slicks, Inc. v. Sheen, 77 F.3d 1280, 1288-89 (10th Cir. 1996)
  21. 21. Is the Presumption Gone? eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006) Injunction in a patent case may issue only in accordance with “traditional equitable principles.” Warned against reliance on presumptions or categorical rules. Id. at 393, 126 S.Ct. 1837.
  22. 22. Is the Presumption Gone? eBay has been applied to copyright cases: Perfect 10, Inc. v. Google, Inc., 653 F.3d 976, 981 (9th Cir.2011) Salinger v. Colting, 607 F.3d 68, 76–78 (2d Cir.2010) Robert Bosch LLC v. Pylon Mfg. Corp., 659 F.3d 1142, 1149 (Fed. Cir. 2011)
  23. 23. Indirect Liability Both contributory and vicarious infringements require someone to have directly infringed the copyright. La Resolana Architects, PA v. Reno, Inc., 555 F.3d 1171, 1181 (10th Cir. 2009) Practice tip: When in doubt, allege all three
  24. 24. Vicarious Infringement Vicarious infringement’s roots lie in the agency principles of respondeat superior. The right and ability to supervise the infringing conduct a direct financial interest in the infringing activity. Perfect 10, Inc. v. Visa Int'l Serv. Ass'n, 494 F.3d 788, 802 (9th Cir. 2007)
  25. 25. Contributory Infringement A person is liable for copyright infringement by another if the person knows or should have known of the infringing activity and [induces] [causes] [or] [materially contributes to] the activity.] Ninth Circuit Jury Instructions
  26. 26. Damages  Actual damages  Statutory damages 17 U.S.C. §504
  27. 27. Actual Damages The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. 17 U.S.C. §504
  28. 28. Actual Damages In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work. 17 U.S.C. §504
  29. 29. Copyright Registration www.copyright.gov  Must be registered to file a lawsuit  Presumption that you are the owner  Statutory damages  Attorney fees
  30. 30. Statutory Damages $750 to $30,000 per work infringed Up to $150,000 if copyright owner proves willful Down to $200 if infringer proves he was not aware and no reasons to believe his acts constituted infringement 17 U.S.C. §504 Practice Tip: Don’t combine works in registration
  31. 31. Fair Use Defense to Infringement –Can not in any way interfere with author’s ability to benefit from the work –Small portions –Educational Purposes –Parody
  32. 32. On-line Issues  DMCA  Agent for service of notices
  33. 33. Litigating Copyright Infringement Presented By: Maria Crimi Speth Jaburg & Wilk, P.C. © 2014 Jaburg & Wilk, P.C.

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