Do you know what you can protect, how to secure your rights, and what constitutes copyright infringement? If not, then these three posts are for you!

Part one covered what you can protect; part two explained how to secure your rights; and this post explores copyright infringement.

What Constitutes Copyright Infringement


Copyright infringement occurs when someone, without authorization, exercises one of the exclusive rights outlined in part one (reproduction, distribution, display, perform, derivative works).

In practice

Copyright infringement can occur even if you are not making a literal copying. For sure, a literal copying is a clear cut case of copyright infringement. But even a substantial copying can constitute copyright infringement. The courts call this the “substantial similarity test.”

When trying to decide if an alleged infringer has committed copyright infringement, you can consider these questions:

  • Is the copy just a copy of an idea, or a copy of an expression of an idea? (Remember, ideas can’t be protected.)
  • Did the alleged infringer copy the “heart” of the original work? (When the heart is copied, infringement is more likely.)
  • If someone buys the copy, are they less likely to buy the original? (If the copy replaces the original, infringement is more likely.)

Pro Tip: Always think about offense and defense.

  • Offense. You should monitor the market to make sure people are not copying your original works.
  • Defense. Make sure you and the people working for you are not copying the original works of other people (even subliminally).

Independent creations don’t constitute copyright infringement

Copyright infringement requires some form of copying (ie, if you’ve never seen the other work, it is impossible for you to have copied it.)

Thus, if you create an original painting and hide it in your basement without ever showing it to anyone and then someone down the street paints the same painting, they can’t be held liable for copyright infringement because they independently created their painting without ever seeing yours.

What about fair use?

In a very limited number of situations you may copy an original work without permission from the copyright owner.

This is called fair use.

Here’s the thing to remember–the fair use doctrine is very limited and you shouldn’t rely on the defense unless you’ve talked with an attorney first. For the most part it is only available in these types of situations: criticism, comment, news reporting, teaching, scholarship, and research.

More on copyrights:

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Image: Adobe/videostore

*This article is very general in nature and does not constitute legal advice.