I. Most Common Defenses
Copyright invalidity is a common defense and can include that the work
was not original,
lacked copyrightable subject matter or that the P is not the owner of the copyright.
1. If the contents of the work are in the public
domain, then a claim of copyright is
2. It can also include that the copyright was not
properly registered and thus the court
lacks jurisdiction to hear the case so the claim is not proper
Independent creation is a complete defense to copyright infringement although
sometimes difficult for a D to prove independent creation.
C. Admission of copying but…..
1. “De minimis” use is a defense that admits copying
but claims that the amount taken
is so small that it makes no difference. It is often coupled with a fair use defense.
2. Similar to de minimis is a defense that what
was copied was not protectable, such as
copying just the facts from a work and not protected expression.
D. Fair use is one of the most commonly raised defenses.
The other statutory limitations on the rights of the copyright holder also
serve as defenses,
§§ 108-122. These range from the library exception to limitations on performance and display
to the satellite television limitations.
II. Other Defenses
Preemption has been successfully argued as a defense when a state cause
of action has been
brought against a D. The 1976 Act sought to clarify preemption and did so to some extent, but
not completely, and cases continue to turn on preemption.
1. Section 301 abolishes common law copyright and
sets forth the criteria to resolve
preemption issues. They include:
a. Subject matter that does not come within the
subject matter of copyright as specified
by §§ 102-103, including works of authorship that are not fixed.
b. Any cause of action arising from undertakings commenced before 1-1-78, or
c. Activities violating any legal or equitable
rights that are not equivalent to any of
the exclusive rights within the scope of § 106 rights.
2. For preemption both of these criteria must be met.
a. The right protected by state law must be equivalent to § 106 rights,
b. The work of authorship must come within the subject matter of §§ 102-103 and be fixed.
The copyright may be expired, or the holder may have forfeited his or her
rights in the work; both
of which are defenses to infringement.
The statute of limitations may have run (three years for civil infringement
and five years for criminal
D. The copyright owner may have granted permission to use the work or licensed its use.
Copyright misuse has begun to be used as a defense since 1990, but the
Supreme Court has never
ruled on the use of misuse as a defense.
1. Patent misuse, on the other hand, is a tried and true defense to patent infringement.
2. Because of the similarity in patent and copyright
and the public policy underlying each
system of protection, some courts have recognized misuse as a defense in copyright cases.
III. Equitable Defenses
A. The typical equitable defenses also apply to copyright infringement.
B. Abandonment is a defense since proof of abandonment counters P's claim of ownership.
1. As in trademark law, overt acts indicating intent to abandon are required.
2. Prior to Berne adherence, an example of intent
to abandon copyright was thought to be the
circulation of a large number of copies without a copyright notice.
3. Today it would likely take an announcement that
the copyright owner is abandoning the
copyright in a particular work.
C. Other equitable defenses include acquiescence, unclean hands, estoppel, etc.
IV. Bad Defenses
Innocent intent is not a good defense to infringement. It may, however,
bear upon the remedies
available against such a D.
1. Unconscious plagiarism, i.e., copying from P
but later forgetting the source, is innocent, but
it is nonetheless infringement.
2. Another example of innocent intent is where
D relies on the work of a third party and the third
party copied from P. Again, D is not relieved of liability.
3. D may consciously copy from P's work believing
in good faith that this conduct does not constitute
an infringement of copyright. Such innocence will not preclude a determination of liability.
4. Remember that claims of innocent infringement are
cut off if the work contains a notice of copyright.
B. Claiming that a work is obscene is not a good defense to infringement although it was in earlier times.
The anti-circumvention measures in § 1201 are not subject to the usual
defenses against copyright