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Copyright Infringement

Copyright infringement occurs when an individual other than the copyright holder violates one or more of the copyright holder’s exclusive rights to a work. Those rights are the right to reproduce the copyrighted work, to make derivative works of the copyrighted work, to distribute the copyrighted work, to perform the copyrighted work, and to display the copyrighted work. Again, if one or more of those exclusive rights is violated, the violator will have infringed upon the copyright of the copyright holder.

There are two types of copyright infringement: primary and secondary. For primary infringement to occur, there must have been a direct infringement by a person/organization of an exclusive right. To determine whether there was in fact a direct infringement, you must determine whether the defendant himself, and without permission, reproduced/performed/displayed, etc., the copyright holder’s work.  If the answer is yes, then it is a direct or primary infringement. The copyright holder will most likely use circumstantial evidence to prove that an exclusive right was violated unless the defendant admits to violating a right. The copyright holder will need to show that the defendant had some access to plaintiff’s work, and then must prove that the similarity between the works is such as to sustain a conclusion that the defendant actually infringed. Both of these requirements are factual determinations and the fact finder will use all available evidence to reach a conclusion. Then, the final requirement for infringement is that the defendant took enough of the copyright holder’s material as to warrant a finding of infringement. This is generally accomplished by comparing the similarities between the works.

Secondary infringement occurs when a person/organization facilitates another person or group of people to infringe upon a copyright. In Copyright Law, secondary liability has grown from common law, meaning that it is not provided for by the statute but rather was developed from case law. Relating to copyrights, the courts look to whether there was vicarious liability (derived from tort law when the superior, such as an employer, is responsible for the actions of the employee) or contributory liability (where a party intentionally induces or encourages primary infringement and fails to exercise his/her ability to stop the primary infringement). Generally, in copyright infringement cases, when determining whether a person/organization is vicariously liable, they look to see that the superior party (the one potentially vicariously liable) must profit directly from the infringement of the direct infringer, and the superior must have the right/ability to supervise the direct infringer. To be found liable for contributory infringement, the person/organization accused of contributory infringement must have directly induced infringement by others, or provide the means to infringe with the knowledge of infringement.


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