IP 101: Elements of Copyright Infringement

  • By:Rachel V. Brenke, Esq.

As discussed in our post on the types of intellectual property, copyright is one of the most common types of intellectual property that many business owners are faced with.   It is important to know what it is, how it works and the elements of infringement so you can either keep yourself from infringing or identify if it is done to you. 

Our firm actively works on registration of copyright, as well as copyright infringement cases (both representing either the infringer or the one being infringed).  


What is a copyright?

Copyrights are an original work of authorship fixed in a tangible medium of expression that is capable of being perceived by a human being (such as logos, images, text, etc.).  Copyright is a set of rights given to authors/creators as to the ownership and use of their creative works, and is subject to protection based on Article I, section 8, clause 8 of the U.S. Constitution, and Acts of Congress relating to Copyright in Title 17 of U.S. Code.

  • Originality = sliding scale of whether a copyright claim is strong or weak
  • Tangible Medium = the idea can’t stay in your mind – it must take tangible form to be copyrighted.
  • Rights of a copyright owner include = reproduction, derivative works, distribution, performance, display, digital display.
  • Duration = life of the author plus 70 years; 120 years if corporate authorship.

While copyright attaches at publication, we highly recommend registration protection for enhanced legal argument and strength to protect your intellectual property.


Elements of Infringement

Infringement occurs when someone owns a copyright work, as defined above, and another uses the work in a capacity that they they do not have permissions for.

First, we look to whether the material in question is subject to protection in the first place.  See, e.g., Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991).

Second, we determine if the defendant had access to the material in question.  . The originality element supposes only that the author made the work independently. Therefore, two people can have rights in the same or substantially similar works. To prove infringement, access to the allegedly infringed work is therefore required.

Before proceeding in court, the plaintiff must have a registration. Infringement occurring after registration, or registration made with 3 months of publication, is especially powerful and helps to lend strength to a copyright infringement claim.



For non-registered works, that is works that receive common law copyright protections at publication, may only receive actual damages and disgorgement of profits. 

Alternatively, registered works have the potential to receive statutory damages of  $750-$30k, and up to $150k for willful infringement if infringement after registration or registration within 3 months of publication (plus, attorney’s fees).

Lastly, impoundment and injunctive relief are remedies that may be available.


Defense to copyright infringement

When it comes to copyright infringement claims, there are four main defenses:

  1. Innocent infringement – this defense is difficult as the infringer must prove that it did not know and should not have known that its conduct amounted to infringement
  2. Status of limitations (3 years)
  3. Fair use – generally, a fair use is any copying of copyrighted material(s) done for a limited and transformative purpose. Examples include to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright holder.
    1. The purpose and character of the use/it this non-profit or commercial use
    2. Nature of the copyrighted work.
    3. How much of the copyrighted work was used
    4. The effect of this use on the potential market for or value of the copyrighted work (this is the most important because copyright is all about market impact)



As you can see, copyright seems fairly basic as you work through understanding what it is, but can become quite complex as you enter into registration and enforcement of copyrights.  If you have any questions, please feel free to reach out to our firm for an initial assessment of your situation.

Rachel V. Brenke, Esq.
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Rachel V. Brenke, Esq.

Partner & Attorney at Connors and Brenke
Rachel Brenke is a Virginia and Texas business attorney focusing her practice in intellectual property law, contract law, business law, technology law, and civil litigation. Her Virginia law firm, Connors and Brenke, provides legal counseling and representation to businesses throughout the Commonwealth of Virginia and State of Texas.
Rachel V. Brenke, Esq.
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Posted in: Copyright, Intellectual Property Law