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Defeating Copyright Infringement Claims* COPYRIGHT LITIGATION STRATEGIES Dale Cendali and J. Michael Keyes, Editors ©2019 by the American Bar Association. Reprinted with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 9781634256834_FM.indd 3 02/03/17 10:55 AM chapter 23 Defeating Copyright Infringement Claims* I. Introduction ..............................................................................................580 II. Defeating Plaintiff’s Prima Facie Case ..................................................581 A. Failure to Establish Ownership .........................................................581 1. Plaintiff Is Not the Author ............................................................582 2. Copyrighted Work Is Not a Work Made for Hire .....................583 3. No Transfer, or Insufficient Transfer...........................................585 B. Failure to Establish Originality .........................................................586 C. Failure to Establish Unlawful Copying ............................................588 1. Access ..............................................................................................588 2. Substantial Similarity ....................................................................590 3. Expert Testimony ..........................................................................593 III. Useful Affirmative Defenses ....................................................................594 A. Establishing Fair Use ..........................................................................595 B. License or Assignment .......................................................................598 C. Joint Ownership ..................................................................................600 D. Jurisdictional Issues ............................................................................601 E. Limitations ..........................................................................................602 F. First Sale Doctrine ..............................................................................604 G. Limitations on Liability Relating to Material Online ....................604 H. Laches ...................................................................................................606 I. Res Judicata .........................................................................................607 J. Collateral Estoppel .............................................................................609 K. Abandonment of Copyright ..............................................................610 L. Equitable Estoppel ..............................................................................612 M. Copyright Misuse ...............................................................................613 N. Unclean Hands ....................................................................................615 IV. Counterclaims ...........................................................................................616 V. Conclusion ................................................................................................617 *Authored by Suzanne Bretz Blum, Thacker Robinson Zinz LPA, Cleveland, Ohio. 579 9781634256834_Chapter_23.indd 579 28/02/17 4:12 PM 580 CHAPTER 23 I. Introduction Once a plaintiff has set forth his prima facie case for copyright infringe- ment, a defendant has many angles from which to mount an attack. This chapter will look at the punctures that can be made in the tires of the plain- tiff’s prima facie case as well as the affirmative defenses that can be placed as roadblocks along a plaintiff’s road to success. Additionally, the chapter identifies potential counterclaims and the special considerations that apply when bringing counterclaims in a copyright case. The goal of this chapter is to effectively equip defense counsel with a current summary of each of the items that should be considered when a client is named as a defendant in a copyright action. The first several segments in the chapter will discuss the theories and case law defendants can use to defeat one or more elements of a plain- tiff’s prima facie case. As discussed in earlier chapters, to state a copyright claim a plaintiff must establish “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.”1 A defend- ant may be able to defeat the claim of ownership or defeat the assertion of originality, either of which will knock out the first prong of the plain- tiff’s prima facie case. There are two components of the “copying” prong that plaintiffs must establish: (1) actual copying, provable by direct or indirect evidence, and (2) that the copying is an unlawful or improper taking.2 A defendant can defeat the “copying component” of the second prong by dem- onstrating that he or she had no access to the work. Or, he or she can defeat the assertion that the copying was an unlawful or improper taking by show- ing that the copying was not quantitatively or qualitatively sufficient to support a finding of actionable copying—in other words, that the allegedly infringing work was not substantially similar. As discussed below, expert testimony may be used in the determination of substantial similarity. The next segments of this chapter will discuss affirmative defenses that are available to challenge copyright infringement allegations. To begin, the Section 106 of the Copyright Act expressly identifies limitations on a copy- right holder’s exclusive rights in Sections 107 through 122. One of these, Section 107’s “fair use” limitation, is a statutory codification of common law equitable principles that allow copying for public policy reasons. Fair use is one of the most litigated affirmative defenses in copyright law and is discussed in this chapter. In addition to fair use, this chapter explores the 1. Warner Bros. Entm’t v. RDR Books, 575 F. Supp. 2d 513, 533 (S.D.N.Y. 2008) (quoting Feist Pubs. v. Rural Telephone Serv. Co., 499 U.S. 340, 361 (1991)). 2. Id. 9781634256834_Chapter_23.indd 580 28/02/17 4:12 PM II. Defeating Plaintiff’s Prima Facie Case 581 use of a license or assignment as a defense, and the impact of a defendant’s establishment of joint ownership of a copyrighted work. The defenses of the first sale doctrine and safe harbor for service providers are considered. Additional tools in the well-prepared defense counsel’s bag include jurisdic- tional defects, statute of limitations, laches, res judicata, collateral estop- pel, abandonment of copyright, equitable estoppel, copyright misuse, and unclean hands. Finally, a defendant should look at the broad setting in which the con- duct at issue arose and evaluate whether she has counterclaims to assert. To the extent counterclaims exist, the statutory preemption of the Copyright Act must be considered. II. Defeating Plaintiff’s Prima Facie Case The plaintiff will try to put his case on wheels by establishing that he owns the rights to a valid copyright and that the defendant has unlawfully or improperly copied the original, and thus protected, portion of his work. A plaintiff’s failure to establish any of these elements will result in a finding for the defendant, so defendants must make every effort to puncture these tires. A. Failure to Establish Ownership As mentioned above, the first prong of a prima facie case requires a plaintiff to establish that he or she owns a valid copyright. A plaintiff can establish ownership by introducing a registration identifying him as the “owner” or other documentation evidencing a transfer of the ownership identified on a copyright registration. A “copyright owner” is defined in 17 U.S.C. § 101 as the owner of a particular right with respect to any one of the exclusive rights comprised in copyright.3 There are three categories of copyright own- ers: (1) individual owners, (2) joint owners, and (3) owners through a work made for hire.4 A defendant can rebut a registration certificate’s identification of own- ership by introducing evidence that the certificate holder is not the owner. In a case where the plaintiff claims to be the person, or one of the per- sons, who translated an idea into an original fixed, tangible expression, the 3. Those exclusive rights are identified in Section 106 of the Copyright Act as (1) to repro- duce the work as copies or phonorecords; (2) to prepare derivative works; (3) to distribute copies by sale or lease; (4) to perform the work publicly; (5) to display the work publicly; and (6) to perform the work publicly by means of a digital audio transmission. 4. 17 U.S.C. § 201 (a), (b). 9781634256834_Chapter_23.indd 581 28/02/17 4:12 PM 582 CHAPTER 23 defendant would have to show that the plaintiff did not actually “author” the copyrighted work. In a case where the plaintiff claims to own the copyright through operation of the “work made for hire” designation, the defendant can challenge whether, in fact, the work qualifies as a work made for hire. Finally, where the plaintiff claims to own the copyright through operation of a transfer of exclusive rights, the defendant can challenge the existence or sufficiency of such transfer. 1. Plaintiff Is Not the Author The author of a work is “the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression enti- tled to copyright protection.”5 In many cases, it is
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