What Are My Defenses to Copyright Infringement?

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This is Brian Hall, a copyright attorney with Traverse Legal, PLC, a law firm that represents copyright registrants, copyright owners, and those dealing with copyright infringement claims throughout the United States.  Today, I will be answering the question:  What are my defenses to copyright infringement claim? 

So, to begin, you may be put on notice of a copyright infringement claim either by having received a cease and desist letter, sometimes known as a threat letter, or by being named a defendant in a copyright infringement lawsuit.  Regardless of how you became aware of the alleged copyright infringement, you need to, first, identify what defenses you have available.  A qualified and experienced copyright lawyer will be the best person that can advise you as to this.   However, what I’d like to do is provide you with some of the most common defenses that arise when copyright infringement is claimed.

The first is known as copyright invalidity.  Simply put, copyright invalidity means that the person claiming that you’ve infringed their copyright does not actually own protectable rights in their copyright.  So, if they don’t have protectable copyright rights, you cannot be held liable for infringement.  There are several fact-specific inquiries that go into determining whether or not someone has copyright rights.  However, you should look to make sure what they’re claiming isn’t in the public domain, or that they didn’t properly register it, and things along those lines. 

The next most common defense is what’s known as fair use.  And fair use provides that just because someone has copyright rights registered with the United States Copyright Office, it does not mean that they can preclude you from making a fair use of a particular work.  And that fair use may be based upon the First Amendment freedom of expression or some other use.  However, fair use is an absolute defense to copyright infringement and one that a qualified copyright attorney can help you analyze. 

There are also defenses that become very specific and a copyright lawyer is necessary in order to identify them.  For example, preemption has been successfully argued as a defense when a state law cause of action has been brought against a particular defendant.  The latest Copyright Act, or the Copyright Act of 1976, clarified preemption, and to some extent, made cases able to continue and other cases not able to continue based upon what the cause of action claimed is in addition to copyright infringement. 

Besides these affirmative defenses, there’s also equitable defenses such as failure to bring the claim within a reasonable amount of time, also known as the doctrine of laches, there’s acquiescence, waiver and other types of defenses, you might even be able to claim that they have abandoned rights because they haven’t done anything to counter third party violations of their copyright in the past. 

Regardless of what defense you bring, it’s critical to analyze them all.  Because, for example, once a lawsuit if filed, your answer, or first responsive pleading, needs to set forth many of these defenses so that you do not waive them.  Therefore, once again, I recommend, when you’re faced with a copyright infringement cause of action, be it in a threat letter or a defendant in a lawsuit, you consult with a registered and qualified copyright lawyer who can assist you in identifying all the defense that apply. 

This has been Brian Hall answering your question:  what are the defenses to a claim of copyright infringement?

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