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show that the intended audience will recognize substantial similarities between the two works the intended audience may be the general public or a specialized field the degree of similarity necessary for a court to find misappropriation is not easily defined indeed the test for infringement of a copyright is of necessity vague 83 two methods are used to determine if unlawful appropriation has occurred the subtractive method and the totality method the subtractive method also known as the abstraction subtraction approach seeks to analyze which parts of a copyrighted work are protectible and which are not 84 the unprotected elements are subtracted and the fact finder then determines whether substantial similarities exist in the protectible expression which remains for instance if the copyright holder for west side story alleged infringement the elements of that musical borrowed from romeo and juliet would be subtracted before comparing it to the allegedly infringing work because romeo and juliet exists in the public domain the totality method also known as the total concept and feel approach takes the work as a whole with all elements included when determining if a substantial similarity exists this was first formulated in roth greeting cards v united card co 1970 85 the individual elements of the alleged infringing work may by themselves be substantially different from their corresponding part in the copyrighted work but nevertheless taken together be a clear misappropriation of copyrightable material 86 modern courts may sometimes use both methods in their analysis of misappropriation 87 in other instances one method may find misappropriation while the other would not making misappropriation a contentious topic in infringement litigation 88 civil remedies edit a successful copyright infringement plaintiff may seek both injunctive relief and monetary damages as of 2019 the united states supreme court has held that a copyright holder must register his copyright with the u s copyright office before he may seek any judicial remedies for infringement 89 copyright act 502 authorizes courts to grant both preliminary and permanent injunctions against copyright infringement there are also provisions for impounding allegedly infringing copies and other materials used to infringe and for their destruction copyright act 504 gives the copyright owner a choice of recovering 1 their actual damages and any additional profits of the defendant or 2 statutory damages however title 17 united states code 411 a states that a civil action to enforce a copyright claim in a us work cannot be made until the work has been registered with the u s copyright office with a narrow exception if the claim was filed and rejected by the copyright office 90 91 in 2019 the u s supreme court decided that 411 a requires that a lawsuit cannot be initiated until the copyright office has processed not merely received the application 91 92 equitable relief edit both temporary and permanent injunctions are available to prevent or restrain infringement of a copyright 93 an injunction is a court order directing the defendant to stop doing something e g stop selling infringing copies one form of equitable relief that is available in copyright cases is a seizure order at any time during the lawsuit the court may order the impoundment of any and all copies of the infringing products the seizure order may include materials used to produce such copies such as master tapes film negatives and printing plates items that are impounded during the course of the lawsuit can if the plaintiff wins be ordered destroyed as part of the final decree monetary damages edit a copyright holder can also seek monetary damages injunctions and damages are not mutually exclusive one can have injunctions and no damages damages and no injunctions or both injunctions and damages there are two types of damages actual damages and profits or statutory damages 94 the copyright owner may recover the profits they would have earned absent the infringement actual damages and any profits the infringer might have made as a result of the infringement but that are not already considered in calculating actual damages 94 to recover actual damages the plaintiff must prove to the court that in the absence of the infringement the plaintiff would have been able to make additional sales or perhaps been able to charge higher prices and that this would have resulted in profits given the owner s cost structure 95 in some cases the profits earned by the infringer exploiting the copyrighted material may exceed those earned by or potentially available to the owner in these circumstances the copyright owner can recover the infringer s profits if a nexus can be demonstrated between the profits and the infringing use 96 statutory damages are sometimes preferable for the plaintiff if actual damages and profits are too small or too difficult to prove if the copyright was registered either within three months of publication or before the infringement then the plaintiff is eligible to seek statutory damages statutory damages are calculated per work infringed 97 statutory damages within the range of 750 to 30 000 per work can be awarded by the court but the amount can be lowered if the infringement is deemed inadvertent or increased significantly if the infringement is willful 98 in case of innocent infringement the amount may be reduced to a sum not less than 200 for an effective range of 200 to 30 000 per work innocent is a technical term in particular if the work carries a copyright notice the infringer usually cannot claim innocence 99 in case of willful infringement again willful is a technical term statutory damages can be no more than 150 000 for an effective range of 750 to 150 000 per work 97 damages in copyright cases can be very high in lowry s reports inc v legg mason inc 100 a 2003 lawsuit by a publisher of stock analysis newsletters against a company that bought one copy of the newsletters and made multiple copies for use in house the jury awarded damages actual damages for some newsletters and statutory damages for other newsletters totaling 20 million attorney s fees edit copyright act 505 permits courts in their discretion to award costs against either party and to award reasonable attorney fees to the prevailing party the court may but is not required to award to the prevailing party reasonable attorney s fees 101 this applies to both a winning plaintiff copyright owner and a winning defendant accused infringer 102 however attorney s fees award is not available against the government like statutory damages attorney s fees are not available if the work infringed is not registered at the time of infringement criminal penalties edit main article criminal copyright law in the united states in addition to the civil remedies the copyright act provides for criminal prosecution in some cases of willful copyright infringement there are also criminal sanctions for fraudulent copyright notice fraudulent removal of copyright notice and false representations in applications for copyright registration the digital millennium copyright act imposes criminal sanctions for certain acts of circumvention and interference with copyright management information there are not criminal sanctions for violating the rights of attribution and integrity held by the author of a work of visual art criminal penalties for copyright infringement include a fine of not more than 500 000 or imprisonment for not more than five years or both for the first offense a fine of not more than 1 million or imprisonment for not more than 10 years or both for repeated offenses nonprofit libraries archives education institutions and public broadcasting entities are exempt from criminal prosecution felony penalties for first offenses begin at seven copies for audiovisual works and one hundred copies for sound recordings 103 government infringement edit the us government its agencies and officials and corporations owned or controlled by it are subject to suit for copyright infringement all infringement claims against the u s that did not arise in a foreign country must be filed with the united states court of federal claims within three years of the infringing action 104 claims filed in the wrong court are dismissed for lack of subject matter jurisdiction the government and its agencies are also authorized to settle the infringement claims out of court the states have sovereign immunity provided by the eleventh amendment to the united states constitution which bars most forms of lawsuits against states in federal courts but can be abrogated in certain circumstances by congress 105 106 107 the copyright remedy and clarification act of 1990 crca states in part that states are liable to copyright infringement in the same manner and to the same extent as any nongovernmental entity 108 and also that states and state entities and officials shall not be immune under the eleventh amendment to the constitution of the united states or under any other doctrine of sovereign immunity from suit in federal court by any person 109 alleging copyright infringement 110 1 the crca has been declared unconstitutional by several federal courts 110 4 and this was upheld by the us supreme court on march 23 2020 111 as a result of the ruling nautilus productions the plaintiff in allen v cooper filed a motion for reconsideration in the united states district court for the eastern district of north carolina 112 on august 18 2021 judge terrence boyle granted the motion for reconsideration which north carolina promptly appealed to the united states court of appeals for the fourth circuit 113 the 4th circuit denied the state s motion on october 14 2022 114 nautilus then filed their second amended complaint on february 8 2023 alleging 5th and 14th amendment violations of nautilus constitutional rights additional copyright violations and claiming that north carolina s blackbeard s law represents a bill of attainder 115 116 eight years after the passage of blackbeard s law on june 30 2023 north carolina gov roy cooper signed a bill repealing the law 117 public domain edit main article public domain in the united states works in the public domain are free for anyone to copy and use strictly speaking the term public domain means that the work is not covered by any intellectual property rights at all copyright trademark patent or otherwise 118 though it commonly refers to just the absence of copyright a work may enter the public domain in a number of different ways for example the copyright protecting the work may have expired the owner may have explicitly donated the work to the public the work may not be the type of work that copyright can protect or the work may have been created by the u s federal government as part of a federal employee s official duties there are exceptions such as by assignment from contractors 19 orphan works edit main article orphan works in the united states the orphan works problem arose in the united states with the enactment of the copyright act of 1976 which eliminated the need to register copyrighted works instead declaring that all original works of authorship fixed in any tangible medium of expression 1 fall into copyright status the elimination of registration also eliminated a central recording location to track and identify copyright holders consequently potential users of copyrighted works e g filmmakers or biographers must assume that many works they might use are copyrighted where the planned use would not be otherwise permitted by law for example by fair use they must themselves individually investigate the copyright status of each work they plan to use with no central database of copyright holders identifying and contacting copyright holders can sometimes be difficult those works that fall into this category may be considered orphaned copyright reform edit numerous legal commentators have argued that copyright protections are overly long and create an unwarranted delay before copyrighted works are allowed to enter into the public domain 119 in 2022 legislation introduced by senator josh hawley entitled the copyright clause restoration act of 2022 seeks to reduce the protection from 70 years after the creator s death post 1978 and 95 years after publication pre 1978 to 28 years with the option to renew it at the end of that term for a limit of 56 years total 120 these same terms were in place from 1909 up until 1976 121 a similar bill was also introduced in 2023 122 see also edit bilateral copyright agreements of the united states copyright catalog copyright status of works by subnational governments of the united states copyright status of works by the federal government of the united states creative commons licenses and list of free content licenses fair use project open source license united states copyright law in the performing arts references edit 1 2 3 17 u s c 102 georgia v public resource org inc april 27 2020 text archived from the original on april 27 2020 copyright term and the public domain in the united states cornell university library january 1 2025 retrieved november 11 2025 1 2 us constitution stanford copyright and fair use center april 8 2013 archived from the original on december 11 2015 retrieved december 3 2015 bracha oren december 24 2010 the statute of anne an american mythology houston law review 47 4 877 78 spiegel online august 18 2010 no copyright law the real reason for germany s industrial expansion spiegel online archived from the original on january 27 2012 retrieved february 13 2012 copyright frequently asked questions teaching copyright electronic frontier foundation archived from the original on december 4 2015 retrieved december 2 2015 baker v selden 101 u s 99 1879 see also cdn inc v kapes 197 f 3d 1256 1261 62 9th cir 1999 jones richard h june 1 1990 the myth of the idea expression dichotomy in copyright law pace law review 10 3 551 doi 10 58948 2331 3528 1475 issn 2331 3528 peter pan fabrics inc v martin weiner corp archived april 13 2019 at the wayback machine 274 f 2d 487 2d cir 1960 carson bryan m april 2005 legally speaking the top ten intellectual property cases of the past 25 years against the grain 17 2 issn 1043 2094 archived from the original on december 10 2015 retrieved december 2 2015 u s copyright office copyright law chapter 1 copyright gov archived from the original on december 25 2017 retrieved april 19 2007 tracy p jong copyright of engineering drawings plans and designs rochester ny tracy jong law firm http www rochesterpatents com archived march 1 2021 at the wayback machine copyrightedpd htm retrieved december 2 2015 star athletica l l c v varsity brands inc archived april 9 2017 at the wayback machine no 15 866 580 u s ___ 2017 slip op at 1 2 quoting 17 u s c 101 archived april 30 2016 at the wayback machine star athletica l l c v varsity brands inc 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