By: Adam Grodman
I. Introduction to Copyright Law
Every day, millions of people interact with copyrighted material. Copyright law has been around since at least 1710, when Britain enacted the Statute of Anne.  The invention of the printing press spurred the need to protect authors and publishers from literary pirates. 
In 1790, America’s newly formed Congress passed America’s first Copyright Act  which was essentially identical to the Statute of Anne. The 1790 Act provided a federal copyright term of 14 years from the date of publication, renewable for an additional 14 years if the author survived the first term.  Each subsequent revision of the United States Copyright Act has incrementally increased the term of Copyright Protection, and expanded the scope of what can be protected by copyright.  For example, the earliest statutes were focused almost exclusively on protecting written works. Under the Copyright Act of 1870, the Supreme Court held that lithographs were copyrightable,  as well as photographs.  Under the Copyright Act of 1909, maps were held to be copyrightable. 
In 1976, The United States Congress passed the most recent Copyright Act (the “Copyright Act”). The Copyright Act continues the tradition of protecting authors by securing exclusive rights to control the use of a copyrighted work during the copyright term.  The purpose of the 1976 Act was to bring the US into accordance with international copyright laws and to modernize the 1909 act. The 1976 Act recognized a fair use limitation on exclusive rights with an indication of the criteria for its applicability. 
Basically, copyright law is the right of an author to control the reproduction of his or her intellectual creation. The various copyright acts have sought to protect copyright holders by providing remedies for infringement. 
II. Basic Facts about Copyright Law
Copyright law protects the intellectual creation, not the medium on which that intellectual creation is stored.  Copyright law does not protect underlying facts, recipes, or processes.  Copyright law does not protect natural forces.  Copyright can protect compilations of information, assuming there is some level of creativity in the selection, coordination, and arrangement of the information provided.  More than “sweat of the brow” is required to obtain copyright protection for a derivative work, meaning there has to be some degree of creativity beyond just making a higher quality version of an existing product.  The author must be human. 
III. What role does a copyright notice play?
Until 1989, a published work had to contain a valid copyright notice to receive protection under the copyright laws.  Benefits of including a copyright notice on copyrighted works are that it reduced the likelihood of a defendant successfully raising an innocent infringement defense, and it is constructive notice to anyone who may use the work that the work is subject to copyright protection. Additionally, tampering with copyright notices is a form of Copyright infringement that triggers statutory damages.  Statutory damages allow for copyright owners to collect between $750 and $30,000 per work infringed.  In cases of willful infringement, that figure can increase to as much as $150,000 per work infringed.  In sum, the existence of a notice might discourage infringement, since would-be infringers would realize that you are cognizant of your intellectual property rights. 
IV. Originality, Fixation, and Authorship – What Copyright Will Not Protect
Copyright law protects original works that are fixed in a tangible medium. Originality requires only that the author makes the selection or arrangement independently without copying that selection or arrangement from another work.  The originality requirement is intentionally kept low. A [copyrighted work] will meet the originality requirement, and can thus receive protection, so long as the author made a nontrivial contribution to the work. 
In Andrien, Andrien was found to be an author of maps despite his assistant fixing the maps at issue because the fixation was mechanical and did not modify the concept or expression embodied in the work.  The types of work that have been excluded from protection include individual performances, contributions to a work absent a written agreement stating who owns what.  Additionally, pictorial, graphic, and sculptural (“PGS”) works are denied protection where there are only trivial variations due to medium change, as in L. Batlin & Sons.  In Batlin, the parties sold small Uncle Sam coin banks. The court held that although a reproduction can receive a copyright when there is substantial variation from the original, the variation must be the result of artistic skill, rather than accidents of the production process. 
In Thomson v. Larson, one of the major contributors to the play RENT died, and his estate sued the other major contributor for copyright infringement.  Thomson was not a co-author of Rent since Larson was listed as sole author, Larson had ultimate decision-making authority on what was in the script and was listed as sole author in contracts. In Aalmuhammed v. Lee, Aalmuhammed was involved in the creation of a movie about Malcom X’s life and wanted rights over his contributions. The court determined that a valuable and copyrightable contribution to a work does not necessarily constitute authorship. 
V. Establishing Infringement
To properly plead a claim of copyright infringement under 17 U.S.C. § 501, a plaintiff must prove two elements: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.  This makes sense in terms of the purpose of the Copyright Act, which is to allow the author to control the distribution of their copyrighted works.
VI. Defenses to Infringement
There is no mental state requirement required to prove copyright infringement.  Defendants who are alleged to have infringed a copyright can raise several defenses to a charge of infringement, including a statute of limitations defense, fair use, innocent infringement, independent creation, or license.
a. Statute of Limitations
Copyright infringement has a three-year statute of limitations. “No civil action shall be maintained under the [Act] unless it is commenced within three years after the claim accrued.” 17 U.S.C. §507(b). In Petrella v. Metro-Goldwyn-Mayer, Inc., the supreme court explained how §507(b) applies.  “A claim ordinarily accrues when an infringing act occurs. Under the separate-accrual rule that attends the copyright statute of limitations, when a defendant has committed successive violations, each infringing act starts a new limitations period. However, under § 507(b), each infringement is actionable only within three years of its occurrence.”  Essentially, a copyright owner has three years from the time he discovers an infringement to bring a suit.
b. Fair Use
Fair use allows authors to claim that their work was sufficiently transformative from the original work, and thus does not constitute infringement.  Fair use is determined on a case by case basis, and no one factor is dispositive.  The fair use factors that courts look at include:
(1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work. 
Under factor (1), if the use is for a commercial purpose, this tends to weigh in favor of the plaintiff because it shows that the copyright holder could have used their exclusive right in this way. The Supreme Court in Campbell said that the Court of Appeals gave too much weight to the first factor and emphasized the importance of weighing all the factors in a fair use analysis. Under factor (1), courts are directed to look to whether the use is a parody, criticism, comment, news reporting, other things mentioned in preamble to §107.  In Sony, the Court had to determine whether the Betamax was capable of being used for legitimate noninfringing purposes to overcome the presumption of market harm for copyright holders concerned about a technology creating duplicates.  The Court held that Sony could not be secondarily for copyright infringement because the Betamax was capable of commercially significant noninfringing uses, such as people time-shifting their recordings to avoid having to watch commercials, and thus there was no harm to copyright holders.
Under factor (2), the Court in Campbell said that the nature of a copyrighted work is not overly helpful in determining fair use for parodies because the artistic value of parodies is often found in their ability to copy large portions of past works.  Where factor (2) can support a finding of fair use is when the nature of the work is educational or factual.  When Gerald Ford’s unpublished manuscript was leaked, the Supreme Court found that the factual nature of the work weighs in favor of fair use.  The belief is that facts should not be monopolized by copyright holders, and the public benefits when more information is available. However, copying fictional material tends to lean against a finding of fair use. 
Under factor (3) the Court of Appeals in Campbell found as a matter of law that the defendants took more of the plaintiff’s work than necessary to parody “Pretty Woman.”  The Supreme Court held that parodies should be able to take the “heart” of the work, so long as the work as a whole is distinctive from the original.  In the Gerald Ford case, the Court emphasized that amount and substantiality of the work taken is both qualitative and quantitative. Thus, if someone takes three hundred words out of a five-hundred-page book, that can still qualify as a substantial portion if that three hundred words discusses the details of the Watergate Scandal, as was the case in Harper & Row</em. 
Under factor (4), the Supreme Court found that the Court of Appeals erred in finding a presumption or inference of market harm for a parody.  The Court said that parodies will rarely substitute for the original work, since the two works serve different market functions.  The cognizable harm is market substitution, not any harm from criticism.  Thus, in Campbell, the market was not found to be harmed by 2LiveCrew’s parody of “Pretty Woman.” But, in Harper & Row, Ford’s manuscript was usurped before Ford could publish it with Harper & Row. Thus, Harper & Row could show The Nation’s article directly competed with Harper & Row’s manuscript, Harper & Row lost out on a $12,500 deal with Time magazine, The Nation directly harmed Harper & Row’s market position because Time cancelled their agreement and refused to pay.  This factor also weighs against a finding of fair use. 
c. Innocent infringement
Unfortunately for innocent infringers, this defense looks better on paper than it is in reality. Defendants bear the burden to prove that they were not aware that their work was infringing copyright. If the Defendant meets that burden, the court maintains discretion to reduce damages, which means the court can, but is not required to, lower the damage amount. Even if the damages are reduced, they are not completely thrown out. Unfortunately, the damage-reduction decision only applies if the plaintiff chooses to be awarded pre-defined statutory damages. The discretion to lower damages does not apply if the plaintiff elects to receive actual damages and profits. Further, innocent infringers can still be on the hook for attorneys’ fees, which can range in the millions of dollars for a copyright infringement suit. 
d. Original Creation
The infringing work was independently created, and therefore it did not copy the Plaintiff’s work. Proof of copying by the defendant is necessary because independent creation is a complete defense to copyright infringement. No matter how similar the plaintiff’s and the defendant’s works are, if the defendant created his independently, without knowledge of or exposure to the plaintiff’s work, the defendant is not liable for infringement.  By establishing reasonable access and substantial similarity, a copyright plaintiff creates a presumption of copying.  In Bright Tunes, the harmonies of Plaintiff’s and Defendant’s songs were found to be identical.  Circumstantial evidence of “He’s So Fine” (the plaintiff’s work) being number one on the billboard charts was enough to show that George Harrison (the defendant) had access to Plaintiff’s work.  Because the court found that Harrison subconsciously copied plaintiff’s work, he was found liable for copyright infringement.  The burden shifts to the defendant to rebut the presumption of access and copying through proof of independent creation. 
Copyright owners often grant licenses that enable people or companies to use works in a certain specified way. Licenses permit the copyright owner to get paid while also letting a third party make use of a work. That said, it is still possible to sue for copyright infringement when a licensee exceeds the scope of their license.  For example, authors of literary works and dramatic musical compositions (operas/musicals) enjoy full rights to authorize or prohibit the creation of recorded performances of their works.  Music artists can license portions of their songs for use in a sample by another artist. In Bridgeport, the defendant copied a three-note chord played in a broken or arpeggiated fashion without a license. The defendant argued that the chord, even if taken from the plaintiff’s song, was de minimis and not substantially similar and therefore not infringing  The Sixth Circuit Court of Appeals held that any unauthorized sampling of any song constitutes copyright infringement.  However, in 2016, the Ninth Circuit Court of Appeals held that a copying is de minimis and non-infringing if the average audience would not recognize the appropriation.  In terms of licensing, the best bet to avoid an infringement claim is probably to seek a license from the original author because the standard of what constitutes infringement varies from circuit to circuit. Unfortunately, copyright owners do not have to grant licenses if they prefer to avoid having their work appear in certain ways. 
What are Copyrights? historyofcopyright.org.
Act of May 31, 1790, ch. 15, § 1, 1 Stat. 124; see also Historyofcopyright.org, supra n.1.
Eldred v. Ashcroft, 537 U.S. 186, 194 (2003).
An Act to Amend and Consolidate the Acts Respecting Copyright, Pub. L. No. 60-349, 35 Stat. 1075 (Mar. 4, 1909).
See Bleistein v. American Lithographing Co. , 188 U.S. 239 (1903) (lithograph posters copyrightable).
See Burrow Giles v. Sarony, 111 U.S. 53 (picture of Oscar Wilde copyrightable).
Alfred Bell & Co. v. Catalda Fine Arts Inc. , 191 F.2d 99 (2d Cir. 1951).
17 U.S.C.A §101 (West); Pub. L. No. 94-553, 90 Stat. 254.
See 17 U.S.C. §107 (Fair Use).
See 17 U.S.C. §504 (remedies for infringement).
See Forward v. Thorogood, 985 F.2d 604 (1st Cir. 1993) (holding that ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied); see also 17 U.S.C. §202.
Nash v. CBS, Inc., 899 F.2d 1537 (1990)(denying copyright protection of facts); see also Bikram’s Yoga College of India, L.P. v. Evolation Yoga, LLC, 803 F.3d 1032 (2015) (denying copyright protection for a compilation of yoga sequences invented by Bikram Choudhury); see also Morrissey v. Proctor &Gamble Co. , 379 F.2d 675 (1st Cir. 1967) (denying copyright protection for basic instructions).
Kelley v. Chicago Park Dist. , 635 F. 3d 290 (7th Cir. 2011) (denying protection to a flower arrangement in Chicago’s Millennium Park).
Feist Publications, Inc. v. Rural Telephone Services, 499 U.S. 340 (1991); see also CCC Info. Service v. MacLean Hunter Market Reports, Inc. 44 F.3d 61 (2d. Cir. 1994).
L. Batlin & Sons v. Snyder, 536 U.S. 486 (1976).
Naruto v. Slater, 2018 WL 1902414 (9th Cir Apr. 23, 2018).
17 U.S.C.A. §104(a).
17 U.S.C.A. §1202.
17 U.S.C.A. § 504(b).
§17 U.S.C.A. §504(c).
Copyright Notice, Circular 3, at 1 https://www.copyright.gov/circs/circ03.pdf (accessed Apr. 19, 2020).
See Feist, 499 U.S. at 345.
Alfred Bell & Co. v. Catalda Fine Arts Inc. , 191 F.2d 99 (2d Cir. 1951).
Andrien v. Southern Ocean County Chamber of Commerce, 927 F.2d 132 (3rd Cir. 1991).
Thomson v. Larson, 147 F.3d 195 (2d Cir. 1998)( holding that for joint authorship, a contribution even of significant language to a work does not automatically suffice to confer co-author status on the contributor. A specific finding of mutual intent remains; see also Aalmuhammed v. Lee, 202 F.3d 1227 (9th Cir. 2000)(holding that an actor does not receive copyright protection for his contributions to a movie).
L. Batlin & Sons, 536 U.S. 486.
Thomson, 147 F.3d at 196.
Aalmuhammed v. Lee, 202 F.3d 1227 (2000).
JCW Investments, Inc. v. Novelty, Inc. , 482 F.3d 910, 914 (7th Cir. 2007).
17 U.S.C.A. §504(c)(2).
Petrella v. Metro-Goldwyn-Mayer, Inc. , 572 U.S. 663, 663 (2014).
See 17 U.S.C.A. §107 (Fair Use).
Campbell v. Acuff-Rose Music, Inc. , 510 U.S. 569 (1994).
Id. at 577.
Sony Corp. of America v. Universal City Studios, Inc. , 464 U.S. 417.
Campbell, 510 U.S. at 571.
Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985).
J. K. Rowling v. RDR Books, 575 F.Supp.2d 513 (Harry Potter encyclopedia found not to be a fair use).
Campbell, 510 U.S. at 570.
Harper & Row, 471 U.S. at 545.
Campbell, 510 U.S. at 571.
Id. at 591.
Id. at 591-92.
Harper & Row, 471 U.S. at 567.
See Andrew Blake, Attorneys awarded $4.6 million over ‘Happy Birthday’ copyright claim, (Aug. 19, 2016) https://www.washingtontimes.com/news/2016/aug/19/attorneys-awarded-46-million-over-happy-birthday-c/.
See Feist, 499 U.S. at 345–46.
Bright Tunes Music Corp. v. Harrisongs Music Ltd. , 420 F.Supp. 177 (S.D.N.Y. 1976).
Id. at 178.
Id. at 179.
Id. at 180-81.
See Granite Music Corp. v. United Artists Corp. , 532 F.2d 718, 721 (9th Cir.1976).
Curb v. MCA Records, Inc. , 898 F. Supp. 586 (M.D. Tenn. 1995).
 17 U.S.C.A. §115.
Bridgeport Musi, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005).
Id. at 795.
VMG Salsoul v. Ciccone, 824 F.3d 871 (9th Cir. 2016).
See Campbell, 510 U.S. at 570 (Roy Orbison refused to grant a license, but the defendants used his work to make their own parodic version).