17.1 PRELIMINARY INSTRUCTION—COPYRIGHT

The plaintiff, [name of plaintiff], claims ownership of a copyright and seeks damages against the defendant, [name of defendant], for copyright infringement. The defendant denies infringing the copyright [and] [contends that the copyright is invalid] [asserts an affirmative defense, e.g., that it made a fair use of the work]. To help you understand the evidence in this case, I will explain some of the legal terms you will hear during this trial.

DEFINITION OF COPYRIGHT

The owner of a copyright has the right to exclude any other person from reproducing, distributing, performing, displaying, or preparing derivative works from the work covered by copyright for a specific period of time.

A copyrighted work can be a literary work, musical work, dramatic work, pantomime, choreographic work, pictorial work, graphic work, sculptural work, motion picture, audiovisual work, sound recording, architectural work, or computer program.

Facts, ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries cannot themselves be copyrighted.

The copyrighted work must be original. An original work that closely resembles other works can be copyrighted so long as the similarity between the two works is not the result of copying.

[COPYRIGHT INTERESTS]

[The copyright owner may [transfer] [sell] [convey] to another person all or part of the owner's property interest in the copyright, that is, the right to exclude others from reproducing, distributing, performing, displaying or preparing derivative works from the copyrighted work. To be valid, the [transfer] [sale] [conveyance] must be in writing and signed by the transferor. The person to whom a right is transferred is called an assignee.]

or

[The copyright owner may agree to let another person exclusively reproduce, distribute, perform, display, use, or prepare a derivative work from the copyrighted work. To be valid, the [transfer] [sale] [conveyance] must be in writing and signed by the transferor. The person to whom this right is transferred is called an exclusive licensee. The exclusive licensee has the right to exclude others from [describe the rights granted in the license].]

[HOW COPYRIGHT IS OBTAINED]

[Copyright automatically attaches to a work the moment the work is fixed in any tangible medium of expression. The owner of the copyright may apply to register the copyright by completing a registration form and depositing a copy of the copyrighted work with the Copyright Office. After determining that the material deposited constitutes copyrightable subject matter and that certain legal and formal requirements are satisfied, the Register of Copyrights registers the work and issues a certificate of registration to the copyright owner.]

PLAINTIFF'S BURDEN OF PROOF

In this case, the plaintiff, [name of plaintiff], contends that the defendant, [name of defendant], has infringed the plaintiff's copyright. The plaintiff has the burden of proving by a preponderance of the evidence that the plaintiff is the owner of the copyright and that the defendant copied original expression from the copyrighted work. Preponderance of the evidence means that you must be persuaded by the evidence that it is more probably true than not true that the copyrighted work was infringed.

[The plaintiff must also prove that the defendant's use of the copyrighted work was substantial. In determining whether the defendant's use of the copyrighted work was substantial, you may consider how important the copied portion was to the copyrighted work as a whole.]

PROOF OF COPYING

To prove that the defendant copied the plaintiff's work, the plaintiff may show that the defendant had access to the plaintiff's copyrighted work and that there are substantial similarities between the defendant's work and the plaintiff's copyrighted work.

LIABILITY FOR INFRINGEMENT

One who [reproduces] [publicly distributes] [publicly performs] [publicly displays] [prepares derivative works from] a copyrighted work without authority from the copyright owner during the term of the copyright infringes the copyright.

[Copyright may also be infringed by [vicariously infringing] [contributorily infringing].]

[VICARIOUS INFRINGEMENT]

[A person is liable for copyright infringement by another if the person has profited directly from the infringing activity and had the right and ability to supervise or control the infringing activity, whether or not the person knew of the infringement.]

[CONTRIBUTORY INFRINGEMENT]

[A person is liable for copyright infringement by another if the person knows or should have known of the infringing activity and [induces] [or] [materially contributes to] the activity.]

[DEFENSES TO INFRINGEMENT]

[The defendant contends that there is no copyright infringement. There is no copyright infringement when [the defendant independently created the challenged work] [the defendant made fair use of the copyrighted work by reproducing copies for purposes such as criticism, comment, news reporting, teaching, scholarship, or research] [the plaintiff abandoned ownership of the copyrighted work] [the plaintiff misused the copyright by requiring its exclusive use or preventing the development of competing products] [the plaintiff granted the defendant an express license to [use] [copy] [other] the plaintiff's copyrighted work] [the plaintiff granted the defendant an implied license to use the plaintiff's copyrighted work] [the defendant, as an owner of a copy of the plaintiff's copyrighted work, resold that copy after the plaintiff made the first sale].]

Comment

See generally 17 U.S.C. §§ 101, et seq.

"For an unauthorized use of a copyrighted work to be actionable, the use must be significant enough to constitute infringement. This means that even where the fact of copying is conceded, no legal consequences will follow from that fact unless the copying is substantial." Newton v. Diamond, 388 F.3d 1189, 1192-93 (9th Cir. 2004) (citations omitted). A use is considered de minimis "if it is so meager and fragmentary that the average audience would not recognize the appropriation." Id. at 1193 (quoting Fisher v. Dees, 794 F.2d 432, 434 n.2 (9th Cir. 1986)).

Copying might also be considered de minimis when the use of the work is so fleeting or trivial that it is a trifle with which the law should not be concerned. Sometimes even copying the entire work or much of the work can be de minimis under this definition. Compare Ringgold v. Black Entm't Television, 126 F.3d 70 (2d Cir.1997) (use of poster in background was not de minimis) with Gottlieb Dev., LLC v. Paramount Pictures, 590 F. Supp. 2d 625 (S.D. N.Y. 2008) (movie producer's use of distributor's pinball machine was de minimis and did not result in copyright infringement when scene in question lasted only three and a half minutes, machine appeared in scene sporadically, for no more than a few seconds at a time, machine was always in background, machine never appeared by itself or in close-up, machine played no role in plot, and designs on backglass and playfield of machine were never fully visible and were either out of focus or obscured); see also Skaff v. Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832, 839-40 (9th Cir. 2007) ("[t]he ancient maxims of de minimis non curat lex and lex non curat de minimis teach that the law cares not about trifles"). In VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 886-87 (9th Cir. 2016), the Ninth Circuit held that the de minimis exception applies to copyrighted sound recordings, just as it always has been held to apply to compositions. The Ninth Circuit acknowledged, however, that its ruling on this question creates a circuit split by disagreeing with the Sixth Circuit's contrary holding. Id.

Regarding the "copyright interests" section of this instruction, when the entire bundle of rights is transferred, the person to whom the rights are transferred is called an assignee. When fewer than all rights are transferred, the person is an exclusive licensee. Gardner v. Nike, Inc., 279 F.3d 774, 778 (9th Cir. 2002). The examples of fair use given in Instruction 17.1 are representative, and other uses may qualify as fair use. See 17 U.S.C. § 107; Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1163 (9th Cir. 2007) ("The fair use defense permits the use of copyrighted works without the copyright owner's consent under certain situations. The defense encourages and allows the development of new ideas that build on earlier ones, thus providing a necessary counterbalance to the copyright law's goal of protecting creators' work product."); id. at 1163 ("We must be flexible in applying a fair use analysis; it is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis . . . . ") (citation omitted).

Regarding the "How Copyright Is Obtained" section of this instruction, "'registration . . .

has been made' within the meaning of 17 U.S.C. § 411(a) not when an application for

registration is filed, but when the Register has registered a copyright after examining a properly

filed application." Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881, 892 (2019).

Revised June 2019