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Copyright Infringement Defenses

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What Is Copyright Infringement?

Copyright infringement results when one party uses the copyrighted material of another without their permission, for financial gain. Copyrights cover artistic works, literature, and performances. Since much of these involve the creative process, it can often happen that one person’s work influences another person’s artistic work.

However, a direct appropriation of protected material is against the law and is often punishable by consequences such as fines, confiscation of the unauthorized material, and sometimes criminal consequences.

Are There Any Defenses to Copyright Infringement?

Depending on the circumstances surrounding the case, there may be some defenses to copyright infringement. For instance, a copyright infringement lawsuit usually will not succeed if the defendant can prove that the works were independently created from one another. They would need to show that they didn’t access the copyright work, and had no means of being aware of the work prior to making their own material.

Software and computer programs that have been distributed in accordance to a copyleft agreement cannot be protected by any subsequent attempts to enforce a copyright. By enacting a copyleft agreement, the creator of the program being distributed through the copyleft agreement forfeits some of their rights to the intellectual property.

Another defense is that of "first sale." This basically states that a person’s copyright rights only apply up until the first sale of the product or work. Once the work is sold, then the rightful owner can make use of the work. They are free to place it on display for instance without being subject to copyright violations (as long as the sale was legal).

Lastly, copyright infringement will not lie if it can be shown that the defendant altered the original work to create a new work in itself. This is a complex determination that usually requires the testimony of expert witnesses. It will also require a showing of how the new work affects the market in comparison with the old work (i.e., whether consumers would be confused into thinking they’re the same work).

How Is Infringement Proven?

Proving copyright infringement can be very difficult to do sometimes. This requires an examination of many factors, including:

  • When the original copyrighted material was produced and copyrighted
  • When the supposed violating material was produced and "introduced into commerce"
  • Whether the defendant was exposed at any time to the creative process of the copyright holder
  • For what purposes the copyrighted material was used (for instance, it’s usually ok to purchase the material or to use it for non-profit-making enterprises
  • Each copyright case is going to be different; thus, proof of copyright infringements depends largely on the nature of the work in question.

Do I Need a Lawyer for Assistance with Copyright Laws?

Copyright laws can often be very complex and may require the assistance of an expert witness during trial. They also require the assistance and guidance of an experienced intellectual property attorney. You may wish to hire a qualified intellectual property lawyer in your area if you have any questions about copyright violations. Your attorney can help address your concerns and can represent you in court if you need to be involved in a copyright lawsuit.

Photo of page author Jose Rivera

, LegalMatch Legal Writer

Last Modified: 05-22-2018 10:42 PM PDT

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