Copyright law protects artistic works such as songs, films, and books. Counterintuitively, it also protects software code. Copyright infringement remedies include potentially astronomical damages, and criminal charges can even be filed under certain circumstances. Depending on the circumstances, however, there are many potential defenses against a copyright claim, including:
Consent: Consent is an obvious defense against a copyright infringement claim; without it, licensing agreements would be impossible. A lesser-known fact is that consent can also be implied, even by silence. Sitting in a lounge night after night while someone plays your songs might be considered implied consent if you fail to object, for example.
The Work Is in the Public Domain: Once a work is in the public domain, anyone can use it with almost no restraint. A copyrighted work might enter the public domain for a number of reasons, including:
The copyright has expired
The copyright was not renewed
The owner has publicly abandoned the copyright
The work’s creator does not claim copyright (certain government agencies, for example).
Insufficient Originality: Copyrights protect “creative works of authorship.” A work that lacks creativity (a simple list of facts or names, for example) cannot be protected under copyright law.
The Plaintiff Lacks Standing to Sue: To file a lawsuit, a plaintiff must have “standing.” For example, the plaintiff might lack standing if he is not the rightful owner of the copyright or if the plaintiff sues in federal court but has not yet registered his copyright. Raising this defense is typically a stalling action, because in many cases it is easy for the plaintiff to correct.
Expiration of the Statute of Limitations: You generally have three years to file a lawsuit after you discover that someone is infringing your copyright (five years for criminal violations). If you miss the deadline, your claim will probably die immediately.
Independent Creation: A surprising defense to copyright infringement is “independent creation.” It is the burden of the person asserting this defense to prove that they created their work on their own and that any similarity with the copyrighted work is merely coincidence. This can be quite difficult to prove.
Fair Use: Technically, it is legal to use a limited amount of a copyrighted work without the permission of the copyright holder for the purpose of comment, criticism, news reporting, teaching, research, parody, or certain other socially beneficial purposes. Unfortunately, exactly how much use is “fair” is generally determined by a court after the fact.
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A copyright dispute can simmer for years. Regardless of which side of the dispute you are on, the longer you wait to deal with it, the greater your risk becomes. At CKB Vienna LLP, our lawyers know how to make things happen and we absolutely will no allow anyone to bully one of our clients.