What arguments may be advanced to defend a claim of copyright infringement?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jul 16, 2021

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Arguments, or defenses in copyright claims cases, are used by the party in a case being sued to either reduce or eliminate the suing party’s case. In copyright law there is a specifically set forth list of acceptable defenses.  

Independent Creation in Copyright Lawsuits

The first argument that can be used against a copyright lawsuit is that the work was independently created by you. This argument would be as follows: “I did not copy your work, but independently created it.” This argument places the requirement for proof onto the defendant to show that their work was independently created of the other person’s work. The best evidence that can be brought for proving this argument is an older copyright mark or an older copyright registration. Should you have either of these, the requirement of proof then shifts to the suing party to prove that their copyright is the accurate one. 

Fair Use and Public Domain in Copyright Lawsuits

The second argument commonly brought in a copyright lawsuit by the defendant is that the work in question fell under either public domain or fair use. Fair use is a list of exceptions under copyright law that permit non-profit and non-copying uses of other people’s work. The fair use list includes:

  • Criticism
  • Comment
  • News Reporting
  • Teaching
  • Scholarship
  • Research

If your use falls into any of these categories, you would have a valid fair use argument. Public domain is when the work’s copyright has expired or the work was created by the government, and, therefore, not copyrightable. 

Statute of Limitations in Copyright Lawsuits

As with any other civil action, a lawsuit for copyright infringement can only be brought within three years of the infringement or thee years of the infringement being discovered (in some cases). So, if an author discovers your infringement and sends you a letter of warning, they cannot wait and sue you four years later because the statute of limitations would have already run. If you ever do receive warning letters from authors, always keep them on file to ensure the statute of limitations has not already run out. 

Authorized Use in Copyright Lawsuits

Copying someone’s work with their permission is not copyright infringement. So, if you are planning on using someone’s work, always send them a letter and notify them of the use. Many times, the author is delighted to hear of how their work will be reused and will grant written permission. Once the written permission has been given, you are free to use their work for the specified purpose without fear of a lawsuit. 

Innocent Infringer in Copyright Lawsuits

Copyright law is one of the few areas of legislation where ignorance can be used as a defense. While this defense will not dismiss the copyright lawsuit, it will drastically reduce the amount of damages and prevent any criminal charges from being brought.


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