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Copyright infringement can be a gray area of law

Creative expression is a unique feature of what it means to be human and government recognizes the value that expression delivers to society through intellectual property law. Obtaining a copyright from the U.S. Patent and Trademark Office is clear recognition of a work's originality and that the holder has the right to derive the monetary benefit from that work.

Registering your work and maximizing protection of your interests depends on meeting the requirements set by the USPTO, including:

  • Making sure your application form is appropriate for the type of work being registered.
  • Properly filing the application and any other necessary documentation with the Copyright Office.
  • Providing a proper number of copies of the work within a set time for use by the Library of Congress.

Copyright is not always absolute

These steps provide you with the greatest amount of protection possible, and working with an experienced attorney is beneficial to see they are carried out. But it is useful to understand that each instance of apparent copyright infringement does not necessarily amount to a viable claim for recovery. That's because of the gray area created by the so-called fair use doctrine.

Under IP law, others have the freedom to use elements of a work without the copyright holder's permission and defend against an infringement claim by showing the work fits under one of four factors.

  1. The use of the copyrighted material is transformative such that it is now different, new, or leads to new ideas.
  2. The nature of the work is truly creative and not based on existing science or history.
  3. The copy represents only a small portion of the protected work and the material does not include a central point of the original. (Parody works enjoy even more flexibility on these points).
  4. The use does not significantly deprive the copyright holder of actual or potential income.

These are not hard and fast rules. Nor are they the only ones a court might choose to apply. Judge's enjoy great discretion in making infringement determinations. Because of this and the cost of pursuing claims in court, it's wise to have the help of skilled counsel to ensure adequate defense of a copyright.

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