17.4 COPYRIGHT INFRINGEMENT—ELEMENTS—OWNERSHIP AND COPYING (17 U.S.C. § 501(a)–(b))
Anyone who copies original elements of a copyrighted work during the term of the copyright without the owner’s permission infringes the copyright.
On the plaintiff’s copyright infringement claim, the plaintiff has the burden of proving both of the following by a preponderance of the evidence:
1. the plaintiff is the owner of a valid copyright; and
2. the defendant copied original elements from the copyrighted work.
If you find that the plaintiff has proved both of these elements, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove either of these elements, your verdict should be for the defendant.
The elements in this instruction are explained in Instructions 17.5 (Copyright Infringement—Ownership of Valid Copyright—Definition), 17.12 (Copyright Infringement—Originality) and 17.15 (Copying—Access and Substantial Similarity). Copying and improper appropriation are issues of fact for the jury. See Three Boys Music Corp v. Bolton, 212 F.3d 477, 481–82 (9th Cir.2000) (citing Arnstein v. Porter, 154 F.2d 464, 469 (2d Cir.1946)).
The elements of copyright infringement cited in this instruction were stated in Feist Publications v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991) (two elements that must be proved by the plaintiff to establish infringement are: "(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original."); see also Swirsky v. Carey, 376 F.3d 841, 844 (9th Cir.2004).
The Ninth Circuit considers the word "copying" as "shorthand" for the various activities that may infringe "any of the copyright owner’s . . . exclusive rights described at 17 U.S.C. § 106." S.O.S., Inc., v. Payday, Inc., 886 F.2d 1081, 1085 n.3 (9th Cir.1989).