Defenses in General
The Copyright Act enumerates several affirmative defenses that can be used to defend against claims of infringement. In essence, these defenses create exceptions that excuse otherwise infringing conduct.
"Fair Use" is the most widely known and popular affirmative defense against copyright infringement claims. Found in § 107 of the Copyright Act, the fair use defense essentially states that otherwise infringing conduct may be lawful if it is done for certain acceptable purposes. The statute specifically states that otherwise unlawful use of copyrighted works for purposes of criticism, comment, news reporting, teaching, scholarship, or research does not constitute infringement. The statute also specifies the factors that a court should consider when attempting to determine whether a particular use constitutes a "fair use". Those factors are as follows:
For more extensive information on fair use, see the following resources:
Patry on Fair Use: Students with access to Westlaw can view this treatise on fair use written by copyright law expert Bill Patry.
Fair Use Practice Note: This guide is a brief practical guide to the law of fair use. It is available with a Westlaw subscription.
Parties can also defend against infringement claims by asserting that the opposing party's copyrights are somehow invalid. Alternately, a party may assert that the accusing party is not the rightful owner of the copyrights in the work at issue.
ALR Report on Copyright Invalidity as an Affirmative Defense: Law students with access to Westlaw can view this American Law report compiling federal cases decided under the Copyright Act of 1976 wherein a party has attempted to use copyright invalidity as an affirmative defense against an infringement claim.
The Copyright Act contains a number of other specifically authorized uses of copyrighted works. If a defending party cannot make an adequate fair use defense, they may decide to argue that their use fits one of the other statutory exceptions. Some (but not all) of the alternative statutory exceptions are listed below:
EDUCATIONAL PERFORMANCES AND DISPLAYS: § 110(1) of the Copyright Act states that it is generally acceptable for persons to engage in otherwise unauthorized performances and displays of copyrighted works as long as the performance/display is done during the course of face-to-face instruction at a nonprofit educational institution.
PERFORMANCES DURING RELIGIOUS SERVICES: § 110(3) of the Copyright Act states that it is generally acceptable for persons to perform nondramatic literary or musical works when such performances are undertaken as part of a religious service or assembly.
SOFTWARE USAGE: Because of the nature of their operation, many computer programs require the creation of a copy in order to function. Therefore, § 117 of the Copyright Act states that it is generally not a violation of copyrights to create an otherwise unauthorized copy of a computer program as long as: (1) the creation of such a copy is an essential step in the utilization of the program; OR (2) the new copy is made for archival purposes only.
There are numerous other specific and nuanced exceptions contained generally in § 108-122 of the Copyright Act. Many of the exceptions are tailored to provide protection for common but narrow circumstances in which copyrights would otherwise be violated.
"Innocent Infringement" is not a full defense to an infringement claim. However, a party defending against an infringement claim can, in many circumstances, reduce their liability by asserting that any infringement was not committed willfully. A defendant willfully infringes on the copyright of another by acting: (1) with knowledge that his conduct constitutes copyright infringement, or (2) with reckless disregard for the copyright holder's rights. Generally, a finding that infringing conduct was not committed willfully will result in lesser damages.
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