Copyright Litigation

Copyright infringement litigation can be a complicated topic. At Sparkman + Foote LLP, we have experienced attorneys assist clients in enforcing their copyrights, and defending against claims of copyright infringement.

Here is a brief overview of the answers to several common copyright questions—including what copyrights are, when they receive and deserve protection, and how courts and statutes provide that protection.

What is a “copyright”—and who owns it?

Copyright is, as its name suggests, a right.

More accurately, it is generally considered to be a bundle of five different rights relating to a “work.” Under the federal Copyright Act (the Act), the author or creator of a qualifying work generally has those five rights to a work—the exclusive rights to reproduce, adapt, publish, perform, and display the work. See 17 USC §106.

Usually, the work’s original author or creator owns this bundle of rights. See 17 USC §201(a). Of course, a work may have more than one author or creator—and therefore “joint” ownership may come into play. See 17 USC §101.

In any event, the concept that copyright consists of a bundle of rights means that a work can have (and often does have) different owners—as the work’s original (or subsequent) owner can assign/sell/convey different parts of the bundle, and retain the others. See 17 USC §101 (defining “copyright owner” as the owner of any of the particular exclusive rights comprised in a copyright); 17 USC §201(d).

What is a “work” under the Copyright Act?

Great question—and one that the Act does not answer.

Still, while the Act does not define “work,” it does generally state that a work is “created” when the work “is fixed in a copy or phonorecord for the first time.” See 17 USC §101.

In turn, a work is “fixed” in one of two ways, depending on the type of work:

  • If the work can have a tangible medium of expression (like words or symbols), then the work is fixed “when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration”; or


  • If the work cannot have a tangible medium of expression (like sounds or images that are being transmitted), then the work is fixed “if a fixation of the work is being made simultaneously with its transmission.”

See 17 USC §101.

This definition is only partly complete, however. The Act also states that when a work “is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work.” See 17 USC §101.

What “works” does the Copyright Act protect?

In general, under the Act any original work fixed in a tangible medium can be “copyrighted.” That means, of course, that a work cannot usually be protected through copyright under the Act if the work is not original, if the work is not “fixed,” or if the work is not fixed in a tangible form. See 17 USC §102(a).

The Act recognizes several categories of works that may be “copyrighted,” including:

  • Literary works
  • Musical works
  • Dramatic works
  • Pantomimes and choreographic works
  • Pictorial, graphic, and sculptural works
  • Motion pictures
  • Sound recordings
  • Architectural works

See 17 USC §102(a).

However, copyright protections—unlike patent protections—can NOT be extended to ideas, procedures, processes, principles, or concepts. See 17 USC §102(b).

Can I register my work for copyright protection under the Copyright Act?

Generally yes. See, e.g., 17 USC §408. This can be a complex task that deserves careful attention to filing details such as deadlines, fees, and classifications of works. (Our attorneys will be happy to work with you on registration of your work for copyright protection.)

What is a “work made for hire” under the Copyright Act?

A “work made for hire” is an important exception to the Act’s general rule that the original author or creator of a work is entitled to the bundle of rights in copyright. See 17 USC §201(b). Specifically, if a work qualifies as a “work made for hire,” then the employer or other person who ordered the work is considered the copyright owner.

The Act defines “work made for hire” in one of two ways, depending on whether the work is prepared by an employee: A “work made for hire” is either:

(1) “a work prepared by an employee within the scope of his or her employment”; or, if not so prepared, then—in general:

(2) “a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.”

See 17 USC §101.

Under the first option, the work’s copyright usually belongs to the employer—so the employee has no right to any of the bundle of rights. See 17 USC §201(b).

Under the second option, the work’s copyright generally belongs to the commissioning or ordering party—so long as several conditions are met. Those conditions include: (a) the work must qualify within one of the categories, (b) the parties must expressly agree that the work is a “work made for hire,” and (c) the parties’ agreement must be in writing and signed by the parties. See 17 USC §101.

How do I prove copyright infringement?

Copyright infringement can be proven in different ways, depending on the facts and features of the case. Many courts recognize that there is “direct” copyright infringement, “contributory” copyright infringement, and “vicarious” copyright infringement.

Notably, though, the Supreme Court has written that “the lines between direct infringement, contributory infringement, and vicarious liability are not clearly drawn.”

What is “direct” infringement?

In general, “direct” copyright infringement means that the owner’s protected work has been copied. It is generally proven by the plaintiff by establishing (1) that the plaintiff owns a valid copyright and (2) that the defendant copied the original elements of the copyrighted work.

Courts generally recognize that “copying” under the second element can be established either (a) by direct evidence of copying or (b) by access to the copyrighted work and a substantial similarity between the infringing work and the copyrighted work.

What is “contributory” infringement?

Put plainly, “contributory” infringement occurs when the defendant intentionally induces or encourages someone else to engage in “direct” infringement. Many courts suggest that this inducement or encouragement must be “material” rather than limited and inconsequential.

Interestingly, the Act itself does not prohibit contributory copyright infringement. Instead, the courts themselves created this form of “secondary liability” through reason from the common law.

What is “vicarious” infringement?

Generally, “vicarious” copyright infringement occurs when the defendant profits from another person’s direct infringement and refuses (or chooses not) to stop or limit the other person’s direct infringement. In other words, this theory allows a court to impose liability on the defendant “when the defendant profits directly from the infringement and has a right and ability to supervise the direct infringer, even if the defendant initially lacks knowledge of the infringement.”

As with “contributory” infringement, the Act does not expressly prohibit this conduct, but the courts have created this liability through reasoning from the common law.

What is “fair use” of a copyright?

Fair use is an affirmative defense to copyright infringement. That is, “fair use”—if the defendant proves it—allows the defendant to escape liability for infringement. This means that a defendant claiming “fair use” signals that copyright infringement occurred, but was permitted.

In determining whether the fair use defense applies, the Act requires courts to examine at least four factors:

  • “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes”
  • “the nature of the copyrighted work”
  • “the amount and substantiality of the portion used in relation to the copyrighted work as a whole”
  • “the effect of the use upon the potential market for or value of the copyrighted work.”

See 17 USC §107.

Courts frequently spend a great deal of time analyzing these factors—one reason that copyright cases are heavily fact-specific and require appropriate legal counsel.

Notably, this defense may apply to “unpublished” works. That is, “[t]he fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.” See 17 USC §107.

Contact: Christina Saunders,