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Anyone who violates any of the exclusive rights of a copyright owner, as provided by 17 USC §106, or an author, as provided in §106A, or imports copies into the United States, in violation of §602, is an infringer of the copyright or right of the owner or author. The legal or beneficial owner of an exclusive right under a copyright is entitled to institute an action for any infringement of that particular right committed while he or she is the owner of said exclusive right.

In order to institute an infringement action, it is necessary to have a valid federal copyright registration. If, however, the action is brought by an author who is alleging a violation of rights protected by §106A, no federal copyright registration is required.

Most copyright cases involve alleged infringement of one of the rights enumerated by §106 rather than a violation of §106A, which deals only with a very limited moral right and is usually not applicable, at least in the United States. This is significant because, although a copyright exists immediately upon the original creation and fixation thereof, the right that is created does not necessarily entitle the owner to maintain an action against an alleged infringer. Accordingly, it is important to register a copyright as soon as possible after creation and fixation. Delaying registration may severely limit the amount of damages that can be awarded in the event there is a finding of copyright infringement. See 17 USC 412.

In most instances, the term copyright infringement relates to the situation where the copyright owner is alleging a violation of §106, which is how the term will be used herein.

As a general rule, it is illegal for anyone to violate any of the rights held by a copyright owner. The exclusive rights of a copyright owner are set forth in 17 U.S.C. § 106. These rights collectively encompass what is referred to, usually in the singular, as a copyright, but are probably better understood to as a collection of individual rights that provide a copyright owner with the right to prevent a range of different activities.

Direct Copyright Infringement

To state a claim for copyright infringement, a copyright owner must prove two things. First, the copyright owner must prove that he is the owner of a valid copyright. Second, the copyright owner must prove that the alleged infringer copied the original elements of the copyrighted work. Generally speaking, the first prong is not difficult to meet, provided of course that the copyright owner has obtained a federally registered copyright. In most copyright infringement cases, the question will boil down to whether the alleged infringer took that which is original. This is a crucial question because a copyright protects only original works of authorship.

An example illustrates this point. It is axiomatic that facts cannot be copyrighted. The United States Supreme Court has held that names, addresses and telephone numbers in a telephone book are facts. Therefore, individual names, addresses, and telephone numbers are not copyrightable. This is not to say, however, that a telephone book is not copyrightable. In most telephone books, there are many original works of authorship that are deserving of copyright protection, such as the prose works at the beginning of the book. Therefore, there may well be parts of the telephone book that are copyrightable. The copyright will, however, extend only to that which is original. Thus, it would not be copyright infringement to copy wholesale all the names, addresses and telephone numbers because these are not protected. Thus, the copyright obtained in a work such as a phone book would be considered "thin," meaning that much of the work is available to the public domain.

Notwithstanding the above, it is important to understand that even the order of a series of non-copyrightable elements can be copyrighted as a compilation. For example, assume you have created an anthology of English Literature and all of the works you have chosen are in the public domain (i.e., no longer copyrighted). Even though the underlying works are not copyrighted, you still have a copyright in the compilation. What is original and copyrightable is the unique order of the anthology. Additionally, if you write original notes, problems and introductory pieces, this material will be copyrighted and therefore protected. Remember, a copyright will extend only to that which is original. This means that you cannot claim any right in the non-copyrightable elements and others can simply copy these non-protected elements from your work.

Contributory Infringement and Vicarious Liability

Fear of contributory infringement and vicarious liability is the reason many institutions and business entities are concerned about potentially infringing activities. This is true because, in order to be liable under either a theory of contributory infringement or vicarious liability, there is no requirement that the plaintiff prove that the individual or entity actually or actively engaged in the underlying infringement.

In order to establish contributory infringement, the plaintiff must demonstrate two things: (1) the existence copyright infringement; and (2) that the defendant knew of the underlying infringement and induced, caused or materially contributed to the copyright infringement. While active engagement in infringing activities is not required, a certain culpable mental state is necessary in addition to conduct that is calculated to further the infringement in some way. While this standard may seem difficult to prove, the knowledge prong can be satisfied by a showing either that the defendant had actual knowledge, or that the defendant should have known. In most situations, institutions and employers will likely not have significant worries associated with contributory infringement. Nevertheless, a contributory infringement theory does present real concerns that should be taken seriously.

In order to establish liability under a theory of vicarious liability, a plaintiff must prove: (1) the existence of an underlying copyright infringement; (2) that a defendant has a direct financial interest in the infringing activity; and (3) that a defendant has the right and ability to supervise the activity which caused the infringement. Unlike contributory infringement, but similar to the direct copyright infringement theory, knowledge of the underlying infringement is not an element of a claim for vicarious liability, and, therefore, innocence is no defense. Because innocence is no defense, vicarious liability can present many dangers.