When you produce a unique work from your own vision and ideas, naturally, you are inclined to protect it from being reproduced and/or attributed to someone else. The self-fulfillment of contributing to the world is the reason creative expression has been at the heart of culture since the beginning of time. Factor in the potential commercial value of creative works, and a “copycat” is simply unacceptable.

It’s not just musicians and artists who must protect their work. Today, businesses of all types and sizes turn to copyright law to safeguard their brand assets. Whether you are the former or the latter, this brief guide will help you identify instances of copyright infringement.


What Type of Work is It?

United States copyright law protects literary, musical, theatrical, choreographic, motion picture and audio-visual works. Architectural works, engineering designs, and software code are also protected under Title 17 of the U.S. Code, which governs most copyright issues. In order for any of the above to qualify for copyright under federal law, the work must be fixed or tangible, meaning it is preserved in some form that is capable of being reproduced.

Works that you are not able to copyright include typography, symbols, contents lists, processes, procedures, common property (such as charts or calendars), and works in the public domain. Names and slogans cannot be copyrighted and must instead be registered as trademarks. Copyright law can be confusing when it comes to deciphering what can and cannot be copyrighted. Therefore, it is best to consult a business attorney that specializes in copyright registration to determine which works are subject to copyrights.


Is the Work Registered?

It is true that common law grants copyright immediately upon publishing a work. However, common law copyright does not provide the same protection as a federally registered copyright with the U.S. Copyright Office. In order to file a lawsuit for copyright infringement and seek statutory damages, your work must have a federal registration on file.


Did the Other Party Have Access to the Original Work?

If you have a federally registered copyright and believe your work has been infringed upon, you must be able to prove that the infringer had access to the work. Any opportunity for the infringer to be exposed to your work constitutes access. In today’s connected world, access is usually the lowest barrier to pursuing an infringement claim (especially considering works published digitally). Nevertheless, access must be present and demonstrable in order for an infringement claim to move forward.


Is the Copied Work Substantially Similar to the Original Work?

While access is often relatively easy to prove, similarity is where copyright infringement earns its notorious name for debate. There are certainly cases in which large or critical portions of a work – such as a song melody – are egregiously reproduced. More often, though, the “substantial” or “striking” similarity lies in a grey area. Because there is rarely direct evidence of the work being physically copied, copyright law involves several tests surrounding the “ordinary observer,” concept, feel, pattern and other guidelines.

In short, a successful infringement claim will require proof that the work was not only copied, but, moreover, copied in an identifiable and meaningful way.


Is it Fair Use?

With the volume and infinite nature of creative works, copyright and free expression can, at times, be opposing forces. The fair use doctrine permits use of copyrighted material, without permission or license, in certain cases. These cases include education, research, news, and parodies. There are four factors considered in determining fair use:

  • Purpose and character of the use – Courts typically allow non-commercial use, especially when the reproduction is transformative.
  • Nature of the copyrighted work – Courts will consider the level of creative expression.
  • Proportion of use – Using a sample of a copyrighted work usually aligns more with fair use than reproducing the work in its entirety.
  • Effect on original – If the reproduced work harms the market for the original work, fair use might not be granted.

To learn more about fair use, click here.


Do You Have the Right Attorney?

We cannot stress enough that copyright is one of the most complex areas of law. Just as consumers need to be aware of the seriousness of copyright infringement, businesses should properly register and police their work accordingly. Applying years of experience in copyright and business law, Gehres Law Library can assist with copyright registration and, when applicable, pursuing a copyright infringement lawsuit. Click here to learn more, or call us at 858-964-2314 to speak with one of our San Diego business attorneys.