An owner of the copyright or an exclusive licensee has the right to sue for copyright infringement. A co-owner or a beneficial owner under exclusive right of a copyright is also entitled to bring a copyright infringement action. A beneficial owner, someone who has relinquished legal ownership in exchange for an economic interest in the exploitation of the copyright, also is permitted to sue for copyright infringement.

In order to sue for copyright infringement and obtain the statutory benefits of the law, registration of the copyright with the US Copyright Office is a prerequisite.

Federal district courts have exclusive jurisdiction over actions that arise under the copyright act. An action arises under the copyright act if: 1) the complaint is for a remedy expressly granted by the copyright act; 2) the claim requires a construction of the copyright act; or 3) a distinctive policy of the copyright act requires that federal principles control the settlement of the claim.

To establish a claim of copyright infringement, you must demonstrate that you have ownership of a valid copyright, and that the use of your copyrighted work is a violation of one of the exclusive rights of the copyright owner.

In order to show violation of one of these exclusive rights, you must demonstrate copying which includes access and substantial similarity of a substantial portion of your work which is protected by copyright. Access can be proven by evidence that the person infringing on your copyright had actually read or heard your work, or had a reasonable opportunity to view or hear your work by showing a particular chain of events. Proof of access may be reduced by showing a striking similarity to your work.

In a copyright infringement action, the court must extract the material in the your work which is not protected by copyright, such as ideas, facts or non-original material, from the material in the your work which is protected by copyright. This latter material will be the only elements for which you may press your claim.

To establish substantial similarity, you need to do an objective comparative analysis of your copyrightable elements and the elements of the infringer’s work. For literary works, those elements are plot, theme, dialogue, mood, setting, pace, sequence of events and characters. For representational objects, those elements are the type of artwork involved, the materials used, the subject matter and the setting for the subject. Often, a “total concept and feel” approach is used.

Not every instance of copying is an infringement. The copying must be substantial and material, either quantitatively or qualitatively, to be an infringement. This also means that the copying doesn’t have to be a large percentage of the work. A small use may be an infringement if the use was the heart of the work.

The information provided in this article is not legal advice and no attorney-client or confidential relationship is or should be formed by use of this article.