How Are the Owner's Rights Enforced?

• Jurisdiction: Maryland

VI. HOW ARE THE OWNER'S RIGHTS ENFORCED?

As a general proposition, a copyright owner enforces the rights granted under Section 106 by bringing an infringement action. Such actions must commence within three years of the infringement, but each act of infringement starts a new clock. In 2014, the U.S. Supreme Court held that the equitable doctrine of laches could not bar a lawsuit commenced within that three-year window, even if the copyright holder might have brought a lawsuit many years earlier.⁵¹ But a copyright holder may not recover damages for infringements that occurred more than three years before filing suit, and the court may take excessive delay in the commencement of a suit when fashioning an appropriate equitable remedy.

While many of the formalities of American copyright law have been eliminated by the 1976 Act and, even more importantly, the Berne Convention Implementation Act of 1989, it is still necessary to register, or attempt to register where registration is denied, a copyright with the Copyright Office before filing an infringement action.⁵² To register the copyright, the owner must submit an application and fee, and deposit a copy or copies of the work. If the Copyright Office determines the work meets the basic requirements for copyright, the registration will become effective as of the application date, assuming the application is complete, the requisite fee has been paid, and the necessary deposit copies provided. Some courts require that a registration certificate issue, absent rejection by the Copyright Office; other courts require merely filing with all requirements met.

In a direct infringement lawsuit, the plaintiff must prove ownership of a valid copyright and unauthorized copying by the defendant. A registration certificate obtained before or within five years of first publication will constitute prima facie evidence that the copyright is valid as to originality, copyrightability, compliance with any necessary formalities, and chain of title from the author where the assignment preceded registration. The owner would have to prove chain of title from any previous copyright owner after registration. Of course, the presumptions of validity and ownership may be rebutted by the defendant, especially considering the lack of vetting performed by the Copyright Office compared to the U.S. Patent and Trademark Office's vetting of patent and even trademark applications for registration.

Because infringers rarely copy others' work in public, or before a witness, it is difficult to prove copying by direct evidence. Typically, plaintiffs prove copying by demonstrating that defendant had a reasonable possibility⁵³ of access to the plaintiff's work and that defendant's work exhibited substantial similarities to the original and protectable aspects of plaintiff's work. The Fourth Circuit applies a two-part test for showing substantial similarities: (1) an "extrinsic" inquiry that looks objectively to "external criteria" of similarity, and (2) an "intrinsic" inquiry that looks to the subjective perspective of the works' intended observer and the "total concept and feel of the works."⁵⁴

In some cases, proof of access may be...