3.6 Infringement and Remedies

What If Someone Infringes Your Copyright?

Before reading this section, please watch the overview video below covering what you can do if your novel, blog post, photograph, or song is used by another without permission, and what the famous “Blurred Lines” copyright trial means to you.

Derived from the common law of trespass, infringement of a copyright or any other intellectual property right occurs when a person violates the exclusive rights of its owner. The term gets its meaning from the word “fringe”—implying a boundary that cannot be crossed. As laid out in Sections 106 through 122 of Title 17 of the U.S. Code and subject to certain exclusions, infringement occurs when a person copies, distributes, performs, or displays all or part of a copyrighted work (or in the world of television, conducts a secondary transmission of a cable system without the express consent of the cable system owner). Copyright infringement requires proof of two things. First, it requires proof that the defendant actually copied from the plaintiff’s work. That makes it different than patent infringement, which can take place even if the defendant independently came up with the invention that was patented by the plaintiff. Proof of copying can be obtained either directly, by the defendant admitting the act, or, indirectly, by showing that he had access to the plaintiff’s work, and that there are similarities between the works that make independent creation unlikely. Second, infringement requires proof that the allegedly infringing work is substantially similar to the plaintiff’s work.^xxi The second requirement is there to make clear that not all copying amounts to infringement. For example, copying of a general theme, such as a detective solving a murder mystery, would not be considered infringement.

There are two ways to demonstrate the similarity of an allegedly infringing work and the original copyrighted work. “Fragmented literal similarity” may be shown by demonstrating that the infringing work contains specific copied elements of the original work. For example, suppose that one travel writer wrote a guide to Florida that contained a chapter on Key West, and a second writer copied that chapter and included it in their otherwise independently researched and written guide to Florida. In that case, we could point to specific sentences and paragraphs in the two works that were identical, even if other sentences and paragraphs were not.

Or, to take another example, in today’s music scene, certain genres of music use pieces or “samples” of previous sound recordings that are then mixed into a new sound recording. Unless the artist doing the sampling licenses the sound recording (and maybe the underlying musical work as well), the sampling could be considered infringing.

Copyright Infringement in the Music Industry

Take Kanye West, for example. He was recently sued for sampling Sly Johnson’s song “Different Strokes” and using it in a new song called “The Joy” on Kanye’s and Jay-Z’s Watch the Throne Album. The case was settled out of court for an undisclosed amount.

The second type of similarity—called comprehensive nonliteral similarity—involves the borrowing of patterns without necessarily borrowing specific elements. In the case of a novel, for example, one author might infringe by copying the plot of another novel, even though he used different words to describe the action taking place. Similarly, a composer of a song might write lyrics and music that closely borrowed patterns from another song, even though he did not use the exact same words and notes.

Again, take Kanye West. He was also recently sued by Vincent Peters, a local Chicago artist, not for sampling his music but rather for employing substantially similar concepts and wording in Kanye’s megahit “Stronger.” The judge did not agree, finding that Kanye’s song had actually used concepts and phrasing that were “common ideas” and in the public domain—specifically, Friedrich Nietzsche’s phrase, “That which does not kill us makes us stronger.”^xxii

But by far, the most significant copyright infringement case in recent years concerning music was the March 10, 2015, verdict against Robin Thicke and Pharrell Williams, the performer and primary songwriter-producer of the 2013 pop hit “Blurred Lines.” A federal jury ruled that Thicke and Williams committed copyright infringement by using elements of the 1977 Marvin Gaye classic R&B hit “Got to Give It Up.” The jury awarded Gaye’s family $7.3 million—a very significant penalty—but the Gaye family announced that they will also seek an injunction against further radio and concert performances of the song, which will certainly give them leverage in negotiating future royalties and songwriting credit.

The case is significant, even beyond the outsize monetary award, because it challenges the growing practice in contemporary music production of incorporating elements, features, themes, and even the “feel” and “mood” of the work of other artists and genres.

Larry Iser, an intellectual property lawyer who has represented artists like Jackson Browne and David Byrne, criticized the verdict. “Although [Marvin] Gaye was the Prince of Soul,” Iser told the New York Times, “he didn’t own a copyright to the genre, and Thicke and Williams’ homage to the feel of Marvin Gaye is not infringing.”

Despite the critics, musicians and producers will likely be more cautious in the future. In addition to the “Blurred Lines” case, singers Sam Smith and Tom Petty reached a settlement in 2015 granting songwriting credit and royalties to Petty on Smith’s song “Stay With Me,” which bore some resemblance to Petty’s hit “I Won’t Back Down.”

Actual and Statutory Damages

As we see in the above case, infringing a copyrighted work can carry very significant penalties. The copyright owner has the right to recoup damages and lost profits from infringement. There are two kinds of damages—actual and statutory. The copyright owner may only receive one or the other form of damages.^xxiii

The Recording Industry Association of America (RIAA), for example, was awarded major damages from Jammie Thomas in 2009 for her willful statutory infringement of 24 copyrighted songs that she had uploaded to the music sharing site Kazaa. Because the infringement was found to be willful, the court in its discretion raised the damages maximum from its usual $30,000 per act of infringement to $80,000 per infringement. That $80,000, times 24 songs that were infringed, resulted in a damage award of $1,920,000^xxiv After several trials and appeals, however, the damages assessed against Thomas were reduced to $222,000.

Take note, infringers—the risks can be very great, indeed.

Only the owners of registered copyrights may file for statutory damages. That’s another reason why it’s a good idea to register your copyright.

Sometimes, though, the copyright owner’s most important remedy for infringement will be an injunction that forces the infringer to stop illegal actions that cause continuing damage to their rights. The grounds for getting that injunction, however, have tightened in recent years and now require the plaintiff, or copyright owner, to provide substantial evidence of infringement that cannot be repaired without an injunction.

As the court of appeals for the ninth circuit put it in 2011:

“Our long-standing precedent finding a plaintiff entitled to a presumption of irreparable harm on a showing of likelihood of success on the merits in a copyright infringement case, as stated in Elvis Presley v. Passport Video and relied on by the district court, has been effectively overruled. In other words, ‘Elvis has left the building.’ Accordingly, we hold that even in a copyright infringement case, the plaintiff must demonstrate a likelihood of irreparable harm as a prerequisite for injunctive relief, whether preliminary or permanent.”^xxv

Individuals who infringe copyrighted material face not only restitution for damages and lost profits and impoundment and destruction of materials, but strict criminal penalties as well. To be subject to criminal penalties, the infringer must have willfully infringed the copyright. For those doing so for commercial advantage or private financial gain, the sentence may be up to five years for a first offense, and ten years for a second offense.^xxvi

We have focused solely on the federal penalties for infringement. That’s because, with the passage of the 1976 Copyright Act, federal copyright law now preempts state laws. State laws governing breach of contract, violations of trust, trespassing, conversion, invasion of privacy, defamation, and deceptive trade practices still exist, however, and these may also be employed by a copyright owner seeking redress for other harms caused by infringing activity.