Professor David Post
H2O has permission to use this resource.
To prevail on a claim for copyright infringement, a plaintiff must demonstrate: 1. That copyright subsists in the work of authorship that is the subject of the claim; 2. That he/she/it “owns the copyright” – more precisely, that he/she/it is the “legal or beneficial owner of an exclusive right under a copyright” and therefore “entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it” (§501(b)); and 3. That the defendant’s actions, taken “while [Plaintiff] is the owner of [that exclusive right],”id., violated (“infringed”) “that particular right.” Id. See also §501(a) (“Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 . . . is an infringer of the copyright”) [Question: What words have I omitted in those ellipses?].
That constitutes the plaintiff’s prima facie cause of action, the elements of the copyright claim. [Defendant may be able to raise defenses to such a claim – we will consider some of those shortly]. The inquiry under #3 turns out to be a little more complicated than it appears, and often gives students (or even experienced lawyers) considerable trouble. On the one hand, it is clear, given the statutory text, that Plaintiff has to point to one or more of the exclusive rights he/she owns and demonstrate that the defendant violated it, e.g., that the defendant “reproduce[d] the copyrighted work in copies,” §106(1), or “distribute[d] . . . phonorecords of the copyrighted work to the public by sale or other transfer of ownership,” §106(3), or “display[ed] the copyrighted work publicly,” §106(5), without authorization to do so. So, here’s a set of facts: On November 1, 2008, Alicia put this poster:
￼in the window of her storefront on Market Street. Assume that (a) the work is protected by copyright, and that (b) the artist Shepard Fairey (or somebody else, whomever it may be) owns the entire copyright (i.e., the entire bundle of §106 rights) in regard to the work. Question: Is Alicia infringing?
The first step requires the copyright owner to show which of his/her exclusive rights were violated by Alicia’s actions. Nothing in the facts suggest that she “reproduced the work in copies”; that is, there’s nothing to suggest that she started with one copy of this copyrighted work and made a second copy. Nor does it appear that she created a “derivative work” based upon the copyrighted work, or that she “distributed copies” of the copyrighted work to the public. [Do you see why not?] This work is not a “literary, musical, dramatic, or choreographic” work (is it??), nor is it a “motion picture or other audiovisual work”; therefore, the copyright owner does not own the exclusive right to “publicly perform” the work. (See §106(4)) [What kind of a work is it??] The most plausible argument the copyright owner has is that this action by Alicia violates his/her exclusive right to “display the copyrighted work publicly.” This will require showing that Alicia “displayed” the work (did she? see §101’s definition of “display”) and that she displayed it “publicly.” (Did she? See id.).
That’s the first step of the prima facie case – “The defendant’s actions fall within one or more of my exclusive rights.” There are, however, two additional steps that are not as clearly set forth in the statutory text. First, the copyright owner must show that the defendant “copied” from the copyright owner’s work. This is a very unfortunate choice of words, but it is deeply ingrained within copyright law and we’re stuck with it. It’s unfortunate because the Copyright Act expressly defines the word “copy” as a noun; a “copy” is a “. . . material object[ ], other than [a] phonorecord[ ], in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” §101. But here, as used within the copyright infringement inquiry, “copy” is being used as a verb: If the defendant did not “copy” from plaintiff’s work, there is no copyright infringement claim, no matter how similar defendant’s work may be to plaintiff’s.
What does it mean to say that Alicia “copied” from plaintiff’s work? It does not mean that she “reproduced” it. Rather, it means that the work Alicia displayed contains expression that was “taken” from plaintiff’s work, and that therefore the similarities between the work that she displayed and plaintiff’s work are not due to coincidence, or to independent development. That is, if Alicia had never seen Shepard Fairey’s “Hope” poster but instead came up with the work she displayed on her own, there’s no infringement claim against her. It is plaintiff’s burden to demonstrate that the poster Alicia publicly displayed in her window is, in fact, his poster – that it was derived from the copyrighted work. [As you read the cases in this section, focus on how courts figure out whether or not the defendant “copied” from plaintiff’s work.] Presumably, this will be easy enough to show in this case – but without additional facts, we can’t be entirely certain.
Assuming that the copyright owner can allege sufficient facts to demonstrate that Alicia “copied” in this sense, i.e. that she is “publicly displaying” the work over which she/he has copyright protection, there is still one additional step required to prove infringement: plaintiff must demonstrate that the work Alicia “publicly displayed” is not only derived from plaintiff’s copyrighted work (i.e. “copied”), but that it is also “substantially similar” to the copyrighted work. We’ll look at this prong of the inquiry in subsequent classes. [￼1]: Note that under §106(5), the plaintiff must also show that the work in question is within the categories specially enumerated in that section –i.e., that the copyrighted work publicly displayed by the defendant is a “literary, musical, dramatic, [or] choreographic work[ ], pantomime[ ], [or a] pictorial, graphic, or sculptural work[ ], including the individual images of a motion picture or other audiovisual work.”