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Defenses to a Claim of Copyright Infringement

The following doctrines or laws provide a defense for an alleged copyright infringer:

•    Invalidity – The defendant may show that the owner’s copyright is invalid.

⁃    Note: This generally arises in the context of the validity or scope of copyright licenses.

•    License – The defendant may demonstrate that she has a valid license.

⁃    Note: This generally arises in the context of the validity or scope of copyright licenses.

•    Public Domain – The defendant may successfully argue that the work is in the public domain.

⁃    Note: This includes works that are not subject to copyright and can longer be made subject to copyright. Since copyrights attach naturally, it generally means that the duration of the copyright has lapsed. A creator may also undertake steps to affirmatively place the copyright in the public domain.

•    Statute of Limitations – The defendant may argue that the statute of limitations for enforcement of an infringement action has run.

⁃    Note: This includes situations where a party learns of an infringing use and does nothing to enforce the copyright against infringement within the statute of limitations. It would generally not apply to on-going infringement.

•    Accident – The defendant may claim unknowing or innocent infringement. This is not generally an available defense for commercial use of a copyrighted work.

⁃    Note: This generally includes any incidental use for a non-commercial purpose.

•    Fair Use Doctrine – The fair use doctrine claims that there is a valid an legal use of the copyrighted work that does not infringe upon the holder’s rights. Examples of fair use may include the following uses:

⁃    review of the material (such as critique or criticism);
⁃    academic use (such as teaching the material or research);
⁃    satire or other parody of the work; and
⁃    news or public commentary.

•    Discussion: Do you agree that the above-listed scenarios should constitute a defense to a copyright infringement action? Why or why not? Can you think of any other situations that should be a defense or constitute fair use?

•    Practice Question: SuperBand is being sued by GreatBand for copyright infringement. GreatBand claims that SuperBand used the rhythm and some lyrics from its copyrighted song. What are some of the potential defenses that may be available to SuperBand?

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