Unauthorized use of copyrighted material constitutes infringement.  Authorized use is not infringement, even if the copyright holder has not given specific consent to the use in question.

The scope of authorized uses of copyrighted material varies depending on the nature of the use.  Authorization, or “right to use” takes several forms, each of which provides an independent legal defense to an action for copyright infringement.  A legal defense essentially provides a legal excuse for an otherwise illegal or non-permitted action.

Legal Defenses recognized under U.S. law include:

1.  Consent.  Proper consent to use copyrighted material should be obtained in a written agreement signed by the copyright holder.  Consents, often called licenses, often limit the scope or duration of permitted uses.  For example, a computer software license may permit installation of copyrighted software on only a single machine or permit use by only a single user.  Copyright holders and users of copyrighted material should carefully review and consider the terms of consent or license agreements and seek the advice of experienced legal counsel before entering into agreements which may compromise their legal rights.

2.  Rights to copy.  U.S. law recognizes a limited right to copy or reproduce copyrighted material belonging to someone else.  Legal rules restrict this right to very specific individuals and situations, as the right to control copying and reproduction belongs primarily to the copyright holder.  Examples of permitted copying include:

            The right of a public library to make a single copy of copyrighted works in the library collection for purposes of preservation and replacement of existing works which cannot be replaced for a fair price (or at all).  Notice that even the library cannot create copies for purposes of lending or circulation.

            The right of licensed broadcasters (essentially radio and television stations) to make copies of copyrighted works during the course of broadcasting, primarily for purposes of time delays.  Many radio stations use short time-delays to prevent callers from violating FCC regulations during “live” broadcasts.  Without this legal defense, the radio stations would technically violate copyright law every time they broadcast with a time delay.

            The right of individuals to record or perform a “cover” version of a previously copyrighted musical composition upon payment of a licensing fee.  This is not the same as making copies of a performance or recorded version of a copyrighted musical work.

            The right of individuals to make private or public use of copyrighted works in a manner which falls within the Fair Use Doctrine.  The Fair Use Doctrine provides the largest legal defense to copyright infringement, but also requires the most space to define and explain.  This defense will be handled in the next installment, Ollie Ollie Oxen Free!: Defenses to Copyright Infringement, Part II.

3.  Independent creation.  Sometimes independently created works seem to infringe existing (or concurrently created) copyrighted works.  An author or artist who can prove, to an objective standard, that he or she created a work independently, without copying (and in most cases without access to) a previously copyrighted work, may obtain a copyright on the independently created work without liability for infringement.  As a defense, independent creation requires a high standard of proof and generally requires the assistance of experienced legal counsel.  Readers are strongly cautioned that “independent creation” is a high legal standard and not easily proven.

4.  Running of the statute of limitations.  The statute of limitations (actually composed of many statutes, or laws, in various jurisdictions) essentially provides a “timer” measuring how long a person has to bring a legal claim.  Claims not brought within the relevant period of time are legally barred, meaning they cannot be pursued in a court of law.  The statute of limitations exists to provide certainty and to prevent plaintiffs from filing lawsuits after enough time has elapsed to make proving (and defending against) the claim unreasonably difficult. 

            Different legal wrongs have different statutes of limitation.  The general statute of limitation for copyright claims states that claims must be brought, and lawsuits filed, within three years of the date the claim originally accrued (the date the defendant infringed the plaintiff’s copyright).  A copyright holder who does not file a lawsuit against the infringer within the time stated in the statute cannot obtain legal damages because the running of the statute (expiration of the time period stated in the law) bars the claim.  This provides a strong incentive for copyright holders to actively monitor and protect copyrighted works.

5.  Inequitable conduct by the copyright holder.  A copyright holder who obtains copyright protection by committing fraud against the copyright office cannot enforce the copyright against infringers.  Essentially, a copyright obtained by fraud is void for purposes of legal enforcement.

6.  Immoral, illegal and obscene works.  Originally, U.S. law did not provide copyright protection for works considered legally immoral, illegal or obscene.  Unfortunately this defense has fallen into disuse and disfavor and arguably no longer exists, although the law has not yet formally abandoned the “immorality” defense.

7.  The Fair Use Doctrine.  As mentioned above, the Fair Use Doctrine provides the largest and most complex defense to copyright infringement.  Copying for personal use, copying for educational purposes and parody all fall within the Fair Use Doctrine, making an understanding of this doctrine indispensable for anyone creating or using copyrighted works.  Discussion of this doctrine will continue in the next installment, Ollie Ollie Oxen Free!: Defenses to Copyright Infringement, Part II.

© Susan Spann, 2005.