Copyright Infringement: Minimum Copying Standards

Copyright infringement occurs when someone violates a copyright owner’s exclusive rights without the express consent of the creator. Below are some examples of copyrights and common copyright infringements:

• Infringement of the Right of Reproduction: Copyright owners maintain the exclusive right to reproduce their work in any fixed form. As a result, copying and selling a work constitutes an infringement of the owner’s right to reproduce. The act of copying and selling an original artwork would constitute an infringement of the right of reproduction;
• Infringement of the Right of Public Performance: If a person publicly performs an original protected song without the creator’s permission, the act would be considered infringing the copyright owner’s right to public performance;
• Infringement of the Right of Distribution: An example of infringing an owner’s right of distribution would be if someone sells unlicensed copies of someone else’s original work, such as a work of literature or art. The copying and distribution of a famous musician’s music for financial gain is prohibited;
• Infringement of the Right to Derivative Works: Copyright owners possess the right to modify their original work and create a new one based on their older works. A derivative work created without permission would be considered an infringement of the right to derivative works. Creating a movie based on a book without the author’s permission is the most common example of this; and
• Infringement of the Right of Public Display: Copyright owners have the right to show their work, including publishing their work online publicly. Copyright owners’ right to public display would be violated if someone published someone else’s original work online without the owner’s permission. An example of this would be releasing a movie online without the owner’s permission would be considered an infringement of the right of public display.

Is Any Amount of Copying of a Copyrighted Work Considered Copyright Infringement?

Due to the focus of copyright on artistic and intellectual ideas, most courts recognize the likelihood of creative overlap. Often, people come up with similar ideas without consciously copying them. To prevent frivolous lawsuits, courts require a certain amount of copying to constitute copyright infringement.

What Is the Minimum Amount of Copying Necessary to be Considered Copyright Infringement?

There is no set standard applicable to all creative works because copyrights cover everything from song lyrics to TV show ideas. There are, however, three instances when copying is too insignificant to be considered an infringement:

1. Small technical violations: An example of this would be putting a photocopy of a movie poster on your wall. The movie studio technically did not permit you to do this, but no court would honor a lawsuit filed by the studio.
2. Trivial copying: For example, using verbs in an article that are also used in other articles. Courts typically require copying that demonstrates a meaningful connection to another’s creative work. Using common verbs doesn’t really prove anything, but copying specific sentences from another article may be considered an infringement.
3. Copying that constitutes a small and insubstantial portion of the copyrighted work as a whole: For instance, if you were to play two notes from the ending portion of a piano solo. Playing the entire number from a piano solo’s climax would likely be considered infringement.

How Does this Minimum Copying Standard Relate to the Infringement Defense of Fair Use?

Minimum copying standards are used to determine whether or not infringement occurs. A minimum copying standard determines whether one can even sue in the first place. Unlike fair use, fair use assumes that illegal copying indeed occurs. Once a lawsuit has already been filed, fair use is considered an excuse for allowing copyright infringement.

When Should I File A Copyright Infringement Lawsuit?

A lawsuit for copyright infringement generally requires various forms of proof. For example, the plaintiff will need to prove that they actually created the copyrighted material and that their current copyright is valid and not expired. The scope of copyright holder rights can be considered broad and may need to be supported by evidence. Documents from previous filings and a copy of the work are examples of evidence.

A plaintiff who expects to be reimbursed must also provide documentation of their financial losses. Losses that cannot be calculated or are speculative will not be reimbursed.

Single Copying For Classroom Use

Professors may make a single copy of any of the following as part of their scholarly research or as preparation for teaching:

• An excerpt from a book
• A newspaper or periodical article
• Whether from a collective work or not, a short story, essay, or poem
• Charts, graphs, diagrams, drawings, cartoons, or pictures from books, periodicals, and newspapers

Multiple Copies For Classroom Use

For classroom use, the professor giving the course may make multiple copies (not exceeding one copy per pupil) if:

• There is brevity and spontaneity in the copying, and
• The copying meets the cumulative effect test, and
• A copyright notice is included with each copy

What Is Brevity?

• For Poetry: An excerpt of no more than 250 words from a longer poem, if the poem is less than 250 words and printed on no more than two pages.
• For Prose: an article, story, or essay not exceeding 2,500 words, or an excerpt from a prose work that does not exceed 1,000 words, or 10% of the work, whichever is less, but in any case a minimum of 500 words. To complete an unfinished line of a poem or an unfinished paragraph of prose, the numerical limits can be expanded.
• For illustrations: A chart, graph, diagram, drawing, cartoon, or picture should be included in each book or issue of a periodical.
• “Special works”: Certain works of poetry, prose, or poetic prose (usually combining language with illustrations and sometimes intended for children, sometimes for a general audience) fall short of 2,500 words in their entirety. Excerpts containing not more than two of the published pages of a special work and not more than 10% of the words found in the text may be reproduced.

What Is “Spontaneity?”

1. Professors copy at their own initiative and inspiration;
2. It would be unreasonable to expect a response to a request for permission so close to the inspiration and decision to use the work for maximum teaching effectiveness.

What Is “Cumulative Effect?”

Copies of the material are for only one course in the college, school, or program requesting them.

• The aggregate material copied during a class term cannot exceed one short poem, article, story, essay, two excerpts from the same author, or three from the same collective work or periodical.

There cannot be more than nine instances of multiple copying in a single academic term. Prose and illustrations in current news periodicals, newspapers and current news sections of other periodicals are not subject to brevity limitations.

General Prohibitions under the Classroom Guidelines

Even if your copying complies with the guidelines above, the following is prohibited:

1. Copies cannot be used to create, replace, or substitute for anthologies, compilations, or collective works. Despite accumulating copies and using them over the course of the term, replacement or substitution may occur.
2. It is not possible to copy all parts of works intended for consumption in the course of studying or teaching. Workbooks, exercises, standardized tests, and test booklets fall into this category.
3. In addition, copying cannot (i) replace the purchase of books, publisher’s reprints, or periodicals; (ii) be directed by a higher authority, or (iii) be repeated by the same professor over and over again.

What Can a Copyright Lawyer Do for Me?

If you feel your copyrighted work is being illegally copied, you should contact a copyright lawyer immediately to protect your interests. A lawyer can determine whether the copying warrants a lawsuit and assist in reaching a settlement or licensing agreement with the other party.