A copyright infringement action requires a plaintiff to prove

(1) Ownership of a valid copyright, and

(2) Actionable copying by the defendant of constituent elements of the work that are original.


Copyright is a legal right created by the law of a country that grants the creator of original work exclusive rights for its use and distribution. This is usually only for a limited time. The exclusive rights are not absolute but limited by limitations and exceptions to copyright law, including fair use. A major limitation on copyright is that copyright protects only the original expression of ideas, and not the underlying ideas themselves.

Copyright is a form of intellectual property, applicable to certain forms of creative work. Some, but not all jurisdictions require “fixing” copyrighted works in a tangible form. It is often shared among multiple authors, each of whom holds a set of rights to use or license the work, and who are commonly referred to as rights holders. These rights frequently include reproduction, control over derivative works, distribution, public performance, and “moral rights” such as attribution.

Copyrights are considered territorial rights, which mean that they do not extend beyond the territory of a specific jurisdiction. While many aspects of national copyright laws have been standardized through international copyright agreements, copyright laws vary by country.

Typically, the duration of a copyright spans the author’s life plus 50 to 100 years (that is, copyright typically expires 50 to 100 years after the author dies, depending on the jurisdiction).

Copyright Infringement-

Copyright infringement is the use of works protected by copyright law without permission, infringing certain exclusive rights granted to the copyright holder, such as the right to reproduce, distribute, display or perform the protected work, or to make derivative works. The copyright holder is typically the work’s creator, or a publisher or other business to whom copyright has been assigned. Copyright holders routinely invoke legal and technological measures to prevent and penalize copyright infringement.

Elements of a Copyright Infringement Claim

a copyright infringement action require a plaintiff to prove

(1) Ownership of a valid copyright, and

(2) Actionable copying by the defendant of constituent elements of the work that are original.

Ownership of a Valid Copyright & the “Originality” Requirement

Ownership of a valid copyright is established by proving

  • the originality and copyrightability of the material, and
  • compliance with the statutory formalities.

Norma Ribbon & Trimming, Inc. v. Little, 51 F.3d 45, 47 (5th Cir. 1995); Cantrell, 85 F.Supp.2d at 682. A timely obtained certificate of registration creates a rebuttable presumption that a copyright is valid and that the registrant owns the copyright. The Copyright Act defines the scope of copyright protection: “Copyright protection subsists…in original works of authorship fixed in any tangible medium of expression.” 17 U.S.C. § 102(a) (emphasis added).

Proof of Actionable Copying
Not all factual copying is legally actionable as copyright infringement. Feist Publications, 499 U.S. at 364; Cantrell, 85 F.Supp.2d at 682. To establish actionable copying a plaintiff must prove (i) the defendant factually copied the protected material, and (ii) that there is a “substantial similarity” between the two works.

Legally Actionable Copying
Many courts have improperly used the phrase “substantial similarity” to describe both “the similarity needed to prove factual copying

[i.e., what the Fifth Circuit terms ‘probative similarity’] and the similarity needed to prove that the copying is legally actionable [i.e., what the Fifth Circuit terms ‘substantial similarity’].”