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COPYRIGHT INFRINGEMENT Mark Miller Jackson Walker L.L.P. 112 E. Pecan, Suite 2400 San Antonio, Texas 78205 (210) 978-7700 [email protected] This paper was first published in the State Bar of Texas Corporate Counsel Section Corporate Counsel Review, Vol. 30, No. 1 (2011) The author appreciates the State Bar’s permission to update and re-publish it. THE AUTHOR Mark Miller is a shareholder with Jackson Walker L.L.P., a Texas law firm with offices in San Antonio, Dallas, Houston, Austin, Ft. Worth, and San Angelo. He is Chair of the firm’s intellectual property section and concentrates on transactions and litigation concerning intellectual property, franchising, and antitrust. Mr. Miller received his B.A. in Chemistry from Austin College in 1974 and his J.D. from St. Mary’s University in 1978. He was an Associate Editor for St. Mary’s Law Journal; admitted to practice before the United States Patent and Trademark Office in 1978; served on the Admissions Committee for the U.S. District Court, Western District of Texas, and been selected as one of the best intellectual property lawyers in San Antonio. He is admitted to practice before the United States Supreme Court, the Federal Circuit Court of Appeals, the United States Court of Appeals for the Fifth and Tenth Circuits, the District Courts for the Western, Southern, and Northern Districts of Texas, and the Texas Supreme Court. He is a member of the American Bar Association’s Forum Committee on Franchising, and the ABA Antitrust Section’s Committee on Franchising. Mr. Miller is a frequent speaker and writer, including “Neglected Copyright Litigation Issues,” State Bar of Texas, Intellectual Property Section, Annual Meeting, 2009, “Unintentional Franchising,” 36 St. Mary’s Law Journal 2, 2005; “Landmine Poker - Malpractice Traps for Intellectual Property Attorneys,” Intellectual Property Law Course, State Bar of Texas, 2003; “Copyright Infringement and Remedies,” E-Copyright Handbook, Aspen Law, 2002; “Patents, Trade Secrets and The Success of a Small Chemical Business,” American Chemical Society, 2001; “Intellectual Property for General Attorneys,” 24th Annual Advanced Civil Trial Course, State Bar of Texas, 2001; “Copyright Infringement,” University of Houston Law Foundation, 2000, 2001 and 2006; “Franchising for the General Practitioner,” San Antonio Bar Association, 1998; “Intellectual Property Malpractice Issues for New IP Attorneys,” State Bar of Texas, Intellectual Property Section, 1998; “You Did What? - Potential Pitfalls for the Franchisor,” State Bar of Texas, Intellectual Property Section, 1996; “Protecting Corporate Trade Secrets and Other Intangible Assets,” San Antonio Bar Association 1993; “Franchise Primer,” State Bar of Texas, Intellectual Property Section, 1993; “How to Represent Prospective Franchisees Effectively,” Texas State Bar, Franchise and Distribution Committee; “The Importance of Trademarks to Franchising,” American Bar Association Forum on Franchising, 1991; “Franchising and The Business Lawyer: How to Recognize It and Deal With It,” Advanced Business Law Institute, State Bar of Texas, 1990; “Expanding Through Franchising,” Texas State Bar Franchise Institute, 1987; and “Franchising in Texas,” 14 St. Mary’s Law Journal 2, 1983. The author wishes to thank Sara Wiley Borrelli of Jackson Walker LLP for her contribution to this paper. i TABLE OF CONTENTS I. INTRODUCTION..............................................................................................................1 A. Scope. .......................................................................................................................1 B. “The Good Book” ....................................................................................................1 II. WHAT IS COPYRIGHT INFRINGEMENT? ...............................................................1 A. Statute ......................................................................................................................1 § 106 Exclusive Rights in Copyrighted Works........................................................1 § 301 Preemption With Respect to Other Laws –....................................................2 § 602 Infringing Importation. ..................................................................................2 B. What is Copyright Infringement? ............................................................................2 C. What is Not Copyright Infringement? .....................................................................5 D. Related Rights and Preemption. ...............................................................................7 III. WHO CAN SUE FOR INFRINGEMENT? ..................................................................11 A. Statute. ...................................................................................................................11 § 501 Infringement of Copyright ...........................................................................11 B. Ownership. .............................................................................................................12 C. Work for Hire. ........................................................................................................13 D. Joint and Collective Works. ...................................................................................14 IV. WHO ARE INFRINGERS? ............................................................................................17 A. Statute. ...................................................................................................................17 § 501 Infringement of Copyright ..........................................................................17 B. Direct Infringers. ....................................................................................................17 C. Indirect Infringers. .................................................................................................17 D. Criminal Infringers.................................................................................................21 V. HOW IS INFRINGEMENT PROVED? ........................................................................21 A. Statute. ...................................................................................................................21 § 501 Infringement of Copyright ...........................................................................21 B. What Work Was Registered? .................................................................................21 C. Is the Copyright Right Valid? ................................................................................22 D. Was the Registered Work Copied? ........................................................................23 VI. HOW MUCH COPYING IS TOO MUCH? .................................................................25 A. Statute. ...................................................................................................................25 § 102 Subject Matter of Copyright: In General ....................................................25 B. Is the Accused Work Substantially Similar To the Copyrighted Work? ...............25 C. Abstraction-Filtration-Comparison Test. ...............................................................26 D. Ven Diagram Example. ..........................................................................................33 E. Substantial Similarity Determination. ....................................................................35 VII. WHAT IS FAIR USE?.....................................................................................................35 A. Statute. ...................................................................................................................35 § 107 Limitations on Exclusive Rights: Fair Use .................................................35 ii B. Fair Use. .................................................................................................................36 C. § 107’s Four Factors. .............................................................................................36 D. Parody. ...................................................................................................................38 E. Fair Use Determination. .........................................................................................39 VIII. MONETARY RELIEF ....................................................................................................41 A. Statute. ...................................................................................................................41 § 412 Registration as a Prerequisite to Certain Remedies for Infringement ..........41 § 504 Remedies for Infringement: Damages and Profits. ......................................41 § 505 Remedies for Infringement: Costs and Attorney’s Fees .............................42 B. Damages and Profits. .............................................................................................42 C. Statutory Damages. ................................................................................................44 D. Election of Statutory or Actual Damages. .............................................................48 E. Attorneys Fees and Costs. ......................................................................................48 F. Who is Liable for What? ........................................................................................49 IX. INJUNCTIVE RELIEF ...................................................................................................50
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