Copyright Infringement

Copyrights protect authors or creators of original works, including software, books, scripts and other creative works expressed in a tangible for form of expression. Protection by copyright law extends immediately upon the creation of the work. Identifying symbols like © or affixing the word “Copyright” help once a lawsuit is filed such as when addressing an innocent infringer defense but are not required in order to obtain copyright protection. Obtaining a copyright registration, however, is a prerequisite to sue for statutory damages under the Copyright Act and for an award of statutory attorneys’ fees.

The elements of a claim for copyright infringement are: (1) ownership of a valid copyright and (2) unauthorized copying of protected elements. “Copying” is shorthand for infringement of any of the exclusive rights under the Copyright Act. Those exclusive rights include the rights to reproduce, distribute, and create derivative works of the copyrighted work. 17 U.S.C. §106. Copyright registration certificates are prima facie evidence of ownership and registration. 17 U.S.C. § 410(c); see, e.g., Peters v. West, 692 F.3d 629, 632 (7th Cir. 2012) (registration certificates established plaintiff’s copyright ownership). Reproducing or distributing copyrighted works without a license constitutes copyright infringement.

A plaintiff may allege infringement by alleging that a defendant copied or distributed copies of the plaintiff’s work, Janky v. Lake Cty. Conv. and Visitors Bureau, 576 F.3d 356, 361 (7th Cir. 2009), or in the case of software infringement loaded the plaintiff’s software onto defendant’s computers without authorization, MAI Sys. Corp., 991 F.2d at 518. Berthold has alleged both in this case. Proving access to the original copyrighted work is necessary when the original and allegedly infringing work share only a few similarities, as such similarities may be explained by independent creation or a common public domain source. Bucklew v. Hawkins, Ash, Baptie & Co., LLP., 329 F.3d 923, 926 (7th Cir. 2003); see Peters, 692 F.3d at 634 (describing the reverse sliding scale between similarity and the need for proof of access). However, “in some cases,” such as those involving verbatim copying (i.e. exact duplication), “proof of access isn’t required.” Bucklew, 329 F.3d at 926; see Ty, Inc. v. GMA Accessories, Inc., 132 F.3d 1167, 1170 (7th Cir. 1997) (when two works are copies of each other “the issue of access need not be addressed separately, since if the later work was a copy its creator must have had access to the original.” (emphasis added)); Ferguson v. Nat’l Broad. Co., 584 F.2d 111, 113 (5th Cir. 1978) (“If the two works are so strikingly similars to preclude the possibility of independent creation, ‘“copying’” may be proved without a showing of access.”).

A complaint initiating a claim for copyright infringement need not identify the specific, protectable elements of the copyrighted work which was infringed in order to state a claim. Mid Am. Title Co. v. Kirk, 991 F.2d 417, 421 n.8 (7th Cir. 1993) (“Complaints [for copyright infringement] simply alleging present ownership by plaintiff, registration in compliance with the applicable statute, and infringement by defendant, have been held sufficient under the rules.” (quoting 5 Charles A. Wright & Arthur A. Miller, Federal Practice and Procedure, § 1237, at 283 (1990))); see also Facebook, Inc. v. Power Ventures, Inc., 2009 WL 1299698, at *4 (N.D. Cal. May 11, 2009) (“Copyright claims need not be pled with particularity … complaints simply alleging present ownership by plaintiff, registration in compliance with the applicable statute and infringement by defendant have been held sufficient under the rules.” (quoting Perfect 10, Inc. v. Cybernet Ventures, Inc., 167 F. Supp. 2d 1114, 1120 (C.D. Cal. 2001))).

Our Chicago Copyright lawyers with offices in Chicago, Wilmette and Elmhurst have defended and prosecuted complex copyright, trade secret and other intellectual property cases for many years including successfully defending one of the biggest financial firms in Canada in a lawsuit brought here for infringement. You can read that decision here. We have also successfully litigated many copyright infringement cases against some of the largest corporations in the United States and the world. Contact one of our Chicago Business Litigation Attorneys for a free consultation at our tollfree number at 630-333-0333. You can also contact us online.