Copyright Infringement and Fair Use

Copyright Infringement

• Suing for copyright infringement involves federal lawsuits under federal copyright law.
• It's crucial to distinguish copyright infringement from plagiarism.

Proving Infringement

• Proving infringement is challenging; defendants rarely admit to using copyrighted work.
• Direct infringement can be proven in two ways:
  • Direct Evidence: Admission by the defendant (rare).
  • Direct Evidence: Video or witness evidence of copying (uncommon).
• Indirect Infringement: More commonly proven through:
  • Access: Defendant had access to the copyrighted work.
  • Substantial Similarity: The two works are substantially similar.
    • These are factual issues decided by a jury.

Access

• Access is usually easily proven if the work is available on the open market.

Substantial Similarity

• Substantial similarity is often disputed, requiring a jury decision.
• Jury Instructions: Juries receive instructions on what to look for in determining substantial similarity.
• Expert Testimony: Often used, especially in film or music cases.
  • Musicologists: Music PhDs may analyze musical structure to argue differences.
  • Example: Led Zeppelin's "Stairway to Heaven" lawsuit, basic rift of that song was pulled from a spirit song. Experts analyzed and compared the music. Led Zeppelin argued similarities weren't enough to constitute infringement; they brought in experts with PhDs to provide detailed musical analysis.
• Jury Discretion: Juries can listen to music, watch movies, or compare written works themselves to make a judgment.

Extrinsic and Intrinsic Factors

• Extrinsic Factors: Objective analyses, looking at similar uses elsewhere to undermine originality.
  • Example: Finding similar chord structures in other songs to dilute the plaintiff's claim to exclusive rights.
• Intrinsic Factors: Subjective judgment; does the work sound or feel similar?
  • In novels, story similarities might be more important than the exact words used.

Defenses

• After the plaintiff shows evidence of infringement, the defendant can raise defenses.
• Common Defenses:
  • Fair Use: The most common defense.
  • Permission: That the defendant had permission to use the work.

Remedies for Copyright Infringement

Injunctive Relief

• Injunction: A court order to stop ongoing infringement.
• Preliminary Injunction: A court order that would bar the defendant from publishing the work in question while the lawsuit goes on.

Preliminary Injunctions

• Important to prevent continued infringement during lengthy trials.
• Requirements for Obtaining:
  • Likelihood of Success: The plaintiff must convince the judge they are likely to win the case.
  • Evidence: The plaintiff must present evidence of infringement and similarity.

Bonds for Preliminary Injunctions

• Bond Requirement: Plaintiffs must post a bond to protect the defendant from potential harm if the injunction is later found to be wrongly issued.
  • The bond amount is based on the potential harm to the defendant.
  • The bond serves as an insurance policy.
• Bonding Company's Role: The defendant can claim damages directly from the bonding company.
• Plaintiff's Security: The plaintiff must provide security to the bonding company, allowing the company to sell property if necessary to cover the damages.

Compensatory Damages

• Money to compensate the plaintiff for harm suffered.
• Jury determines the amount based on proven damages.
• How to Measure Damages:
  • Defendant's Profits: How much money the defendant made from selling the infringing work.
    • The plaintiff should be able to get damages from them saying, all that money you made from selling my copyrighted work, you can now pay it to me.

Statutory Damages

• A statutory penalty against the infringer.
• The court has discretion to award a dollar amount for each infringement.
• Amount: Can range from 750 to 10,000 or more per violation.
• Number of Infringements: Can be very high, especially if many copies were sold.

Attorney's Fees and Costs

• The plaintiff can make the defendant pay the plaintiff's attorney's fees if the plaintiff wins.

Seizure and Destruction

• The court can order the seizure and destruction of infringing materials.

Criminal Charges

• The FBI can investigate copyright infringements, though they typically focus on massive infringement rings.

Fair Use Defense

• The defendant admits using the plaintiff's work but claims it was fair use.
• Fair use is recognized by the Copyright Act.
• Premise: Certain uses of copyrighted material are permitted to promote productive thought and public instruction.
• Factual Call: Determined by looking at various factors.

Factors for Determining Fair Use

• The Copyright Act identifies factors, but doesn't define fair use.

1. Purpose and Character of the Use

• Favored Uses: Criticism, comment, news reporting, teaching, scholarship, research, parody.
• Commercial vs. Non-Commercial: Non-commercial uses tend to be favored. But that is not always the case. *Commercial use is not always unfair, and noncommercial use is not always fair.
  • Purely Commercial Uses: Usually not fair uses.
  • Parody: Can be fair use even if commercial (e.g., Saturday Night Live).
    • Saturday Night Live skits are considered fair use due to their parody nature, even though they're commercially successful. Commercial use is not always unfair, as long as the purpose is clearly distinct from the original.

2. Transformative Uses

• Concept: If the infringer has transformed the original copyrighted material into something very different, it may be fair use.
  • Transformative Use: Adds something new with a different character, altering the original with new expression, meaning, or message.
• Rationale: Different market, audience, message, impact, or form of art.
• Campbell Case: Two Live Crew's parody of Roy Orbison's "Oh, Pretty Woman."
  • Two Live Crew created a song with a different musical genre and a completely different message, which could be considered a parody. The ultimate product of the two Life Group songs was markedly different than anything in the original song.
• Sampling: Music sampling can often be considered fair use if it transforms the original such that it is part of a completely different type of song.
• Song Mashups: Often argued as fair use based on transformative nature.
• Altering Images: Modifying photos or paintings to create humorous ads or commentary.

3. Andy Warhol's Prince Series

• Supreme Court Case: Limitations to transformative use.
• Details: Andy Warhol colorized a black and white photo of Prince.
• Court's Decision: The transformation was not significant enough because it was used for the same purpose as the original photo (articles about Prince).
  *Although Andy Warhol had made the copyrighted photo of Prince into something that looks very different, it really was being used in for the same type of purpose as the original- attached to articles about prints.