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It is illegal for anyone to infringe any of the rights provided by the copyright law to the owner of copyright.
To prevail on a claim of copyright infringement under the Copyright Act, a plaintiff must establish (1) ownership of a valid copyright, and (2) copying by the defendant of elements of the work. Generally, a copyright infringement plaintiff proves that the defendant had access to the copyrighted work, and that the two works contain similarities that establish copying between the works.
The standard test for substantial similarity is whether an ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard [the] aesthetic appeal as the same. Such a comparison must be made on a case-by-case basis, as there are no bright-line rules for what constitutes substantial similarity. The works' total concept and feel are also relevant.
In connection with a copyright infringement case, a court can grant preliminary and final injunctions to prevent or restrain infringement of a copyright.
A preliminary injunction is one that would go into effect prior to a final determination of the merits of the case. Typically, an application for a preliminary injunction is made at the very beginning of the case. A preliminary injunction is an extraordinary and drastic remedy because it heavily impacts the rights of the affected party before discovery and a hearing on the merits. As a result, a preliminary injunction will not be granted absent a clear showing that the [moving party] has met its burden of proof. To prevail on a motion for a preliminary injunction, the moving party must demonstrate (1) a threat of irreparable injury and (2) either (a) a probability of success on the merits or (b) sufficiently serious questions going to the merits to make them fair grounds for litigation, as well as a balance of hardships tipping decidedly in the moving party's favor. Irreparable injury exists where, but for the granting of the preliminary injunction, it would be difficult or impossible to return the parties to the positions they previously occupied.
A trial court has discretion to fashion a preliminary injunction that will preserve the status quo pending a trial on the merits.
The party seeking a preliminary injunction has a high burden to meet – and there are a number of defenses or hurdles that exist. For example, a preliminary injunction will not be granted where:
During the course of a copyright litigation the court may order the impounding of infringing goods such as:
At the end of the case, the court can direct that the impounded materials be destroyed or order some other reasonable disposition of the property.
The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer's profits, the copyright owner is required to present proof only of the infringer's gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.
A copyright holder who has a timely copyright registration (see the article on timely copyright infringement) is entitled to elect an award of statutory damages. Statutory damages advantage copyright plaintiffs because there is no need to prove in lost revenue or the infringer’s profits. Lost revenue and profits can be very difficult to prove in court. While the option to seek an award of statutory damages is intended to advantage copyright holders, it is not intended to provide them with a windfall. Damages and profits may be considered by the court as factors in setting the statutory damages. Moreover, the court has broad discretion in determining the amount of an award. In determining the appropriate level of statutory damages in copyright infringement case, the court looks the following factors:
After considering these factors, statutory damages are awarded by the court between $750 and $30,000 per infringement. In a case where the copyright owner sustains the burden of proving that infringement was committed willfully, the court in its discretion may increase the award of statutory damages up to $150,000. For the purpose of awarding enhanced statutory damages, a copyright infringement is “willful” if the defendant had actual or constructive knowledge that its actions constitute an infringement.
In any case involving the infringement of a copyright that timely registered (see the article on timely copyright infringement), the court is authorized to award a reasonable attorney's fee to the prevailing party – plaintiff or defendant — as part of the costs. The determination of who is a prevailing party can be a matter that is litigated. However, after identifying the prevailing party, the court may consider the following factors necessary to determine whether a fee award is warranted: