Common Defenses in a Copyright Infringement Lawsuit

Application of the fair use doctrine is a common defense asserted in copyright infringement litigation. Fair use allows a person or entity to make use of a copyrighted work without having been authorized to do so. There are limits, however. The defendant may only be shielded from copyright infringement liability if they made use of the copyrighted work in a transformative manner. Transformative use includes, but is not necessarily limited, to criticism, satire, parody, education, and research, among other things.

For example, if the defendant-infringers sells parody artwork where they lambast your paintings using a modified version of your original artwork, then you will almost certainly encounter the fair use defense (which would very likely apply to the case and protect the defendant from liability).

You cannot enforce your rights as a copyright owner and recover damages for infringement if your copyright is invalid. Defendants may avoid liability through an assertion of invalidity by demonstrating that:

• Registration did not take place, and the court does not have jurisdiction
• The work itself lacks copyrightable subject matter (i.e., it utilizes content from the public domain)
• The plaintiff is not the actual owner of the copyrighted work
• The copyrighted work is not an original work (i.e., the bulk of the subject matter is a copy of or derived from other works)

This defense can be an issue if you did not consult with a qualified copyright attorney when initially establishing your copyright.

In some cases, the infringer can put forth an affirmative defense that is based on the fact that the copyright owner abandoned the work. If you are involved in copyright infringement litigation where the infringer is asserting that you have abandoned the copyrighted work, you are relatively well-protected — as protection is attached automatically to copyrightable works, the defendant can only succeed in proving that you abandoned the work if they could show that you have clearly indicated an intent to abandon ownership rights.

Independent creation is a commonly plead defense. Remember, copyright protection is quite unlike patent protection in the sense that it does not grant exclusivity that prohibits “all” similar uses. Copyright protection does not apply where two (or more) works were created independently of one another. As the plaintiff-owner, you’ll want to introduce evidence that links the timeline of the defendant’s creation to yours, and you’ll want to undermine any evidence that points to the contrary.

In some cases, the infringer will argue a “de minimis” defense — in essence, that even if they have copied or otherwise infringed upon your copyrighted work, the infringement was so minor and insignificant that liability should not attach. Whether infringement qualifies as “de minimis” depends on the circumstances, but in general, if the original copyrighted work is easily recognizable, then the infringement will likely be deemed significant and not “de minimis.”