BFV Perspectives, Corporate Matters, | Jan 20, 2020

Defenses to a Claim for Copyright Infringement

One of the primary considerations you or your company must make upon receipt of a copyright infringement notice is the defenses you or your company may have to the claim for infringement.

To establish a copyright infringement in court, the owner must show (1) ownership of a valid copyright, and (2) violation of one of his or her exclusive rights to reproduce, distribute, performed, display, and make derivative works.  Generally, there are two main defenses that can be raised against a copyright infringement claim: (1) challenging the alleged copyright owner’s claim to ownership; and (2) challenging an alleged violation of a right.

Defenses Against Claim of Ownership of a Valid Copyright

The defenses against an alleged copyright owner’s claim to ownership of a copyright focus on whether the alleged owner actually owns the copyright.  These defenses include:

  • Unregistered Copyright – Based on the U.S. Supreme Court’s recent ruling in Fourth Estate Public Benefit Corp. v., LLC, et al., an alleged copyright owner must apply for copyright registration with the Copyright Office and the Copyright Office must make or refuse registration before litigation may be instituted.  A copyright infringement lawsuit initiated before registration may be subject to dismissal.
  • Lack of Originality – A work is protected by the Copyright Act only if it is an original work of authorship.  The owner must show that the work was independently created and that it possesses at least a minimal degree of creativity.  Thus, for example, compilations (e.g. phonebooks), reproductions, and factual recitations are not a protected work without some additional minimal creativity.
  • The Merger Doctrine – Copyright law does not protect against expressions of ideas that can only be expressed in one or very few ways.  For example, a “no smoking” sign conveyed through a red circle with a diagonal line crossed through it over a cigarette is not copyrightable because there are only a few effective ways of visually presenting the idea.

Defenses Against Allegation of Violation of an Exclusive Right

Additionally, there are defenses that may be raised against a copyright owner’s allegation that his or her exclusive right to copyright ownership has been violated.  These protected by copyright defenses include:

  • Independent Development – Copyright does not protect against independently created works, even if the work is identical.  In other words, if you create your work independently without any knowledge of the copyrighted work, there is no infringement.
  • Fair Use – The Copyright Act specifically provides that the fair use of a copyrighted work is not an infringement of copyright.  Use of a copyright work “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” is not an infringement.  Several factors are considered in assessing whether use of a work is considered fair use or liable for copyright infringement, including:
  • The purpose and character of the use – Is the use commercial? Educational? Transformative?
  • The nature of the copyrighted material or work – Is the work factual or creative/fictional?
  • The amount and substantiality of use in relation to the whole
  • The effect on the potential market for or value of the work – Is it a substitute for demand for the work?
  • Scènes à Faire – Copyright does not protect elements of a work that are standard/indispensable in the type of work at issue.  Common scenes and themes, standard or stock expressions, and clichéd language are not protected.


There are numerous defenses that may be raised against a copyright infringement claim.  Listed above is just a sample of the most common applicable defenses.  It is important to understand that each case must be evaluated based on its own facts to determine whether a particular defense exists.    If you have questions about a copyright notice, please let me know if I can help.

BFV Perspectives, Corporate Matters, | Jan 20, 2020
Daniel H. Park
Daniel H. Park

Work hard at work worth doing. This is what drives Daniel Park in every aspect of his life. At Berman Fink Van Horn, Daniel demonstrates this in everything he does.