Knowing Your Copyright Defenses In Advance

The owner of a copyright has the right to take an individual or entity to court if he or she believes that an infringement of copyright has been committed. Though the plaintiff is likely to have a valid argument that copyright infringement has taken place, there are several defenses a defendant can use if he or she believes that he or she is not guilty.

The job of the plaintiff is to prove beyond a reasonable doubt that the defendant knowingly infringed upon the plaintiff's work of authorship . A defendant must establish doubt, resulting in the copyright infringement trial being dismissed or the damages owed to the plaintiff reduced.

Independent Creation

It is not uncommon for a work of independent creation authored by the defendant to be unintentionally similar to the plaintiff's work. The defendant must show that he or she was unaware of the plaintiff's work, so there is no possible way that infringement took place, even with the similarities. As a normal procedure, corporations destroy unsolicited mailings from authors trying to secure publication.

De Minimis Copying

There is a legal doctrine known as "de minimis non curat lex." This means that the law does not care about trivial things. This can be applied to copyright infringement cases where a defendant can use a de minimis copying defense against the plaintiff. This is done when the defendant believes that only trivial portions of the plaintiff's work of authorship have been repeated in his or her work, and no copyright infringement has taken place. For example, if a copyrighted photograph appears subtly in the background of another work, this defense may be used successfully.

First Sale Doctrine

First sale doctrine is a defense which limits the power of a copyright holder, recognized by the U.S. Supreme Court in 1908. It allows a legal purchaser of a copyrighted work to resell the work or discard it as he or she wishes. For example, if an individual buys an album by a musical artist, he or she may resell the album to another owner. It does not, however, allow an individual to make an unauthorized copy of the album and give it to another individual.

Fair Use

Fair use is an affirmative defense which may vary greatly, depending on the actions of the plaintiff and other circumstances of the case. The defendant can apply fair use to a number of cases. If the defendant used the copyrighted work for the purpose of non-profit, educational use, the case may be dismissed. In addition, copyrighted work may be legally used by another author for criticism, commentary, news reporting, or for specific research purposes. Courts will generally look at the effect of the claimed infringement on the original work's value among other factors before deciding if the case constitutes fair use.

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