17.6 Copyright Infringement—Ownership of Valid Copyright—Definition (17 U.S.C. §§ 201-205)

            The plaintiff is the owner of a valid copyright in [identify work[s] allegedly infringed] if the plaintiff proves by a preponderance of the evidence that: 

1.         the plaintiff’s work is original; and

2          the plaintiff [is the author or creator of the work] [received a transfer of the copyright] [received a transfer of the right to [specify right transferred, e.g., make derivative works, publicly perform the work, etc.]]. 

Comment 

            Under the Copyright Act, the party claiming infringement must show ownership.  See Lamps Plus, Inc. v. Seattle Lighting Fixture Co., 345 F.3d 1140, 1144 (9th Cir. 2003) (“Ownership of the copyright is ... always a threshold question.” (quoting Topolos v. Caldewey,698 F.2d 991, 994 (9th Cir. 1983))).

Under the Copyright Act, no copyright infringement exists if an “owner of a copy of a computer program . . . mak[es] . . . another copy or adaptation of that computer program” for certain purposes, such as when is an “essential step” in using the program. 17 U.S.C. § 117(a)(1). To determine whether a party is an “owner of a copy” of a computer program, the court looks to whether the party has “sufficient incidents of ownership” over the copy of the software program. Oracle Int’l Corp. v. Rimini St., Inc., 123 F.4th 986, 997 (9th Cir. 2024) (deciding this question by reviewing “the totality of the parties’ agreement”); see 17 U.S.C. § 202 (“Ownership of a copyright . . . is distinct from ownership of any material object in which the work is embodied.”).

Revised March 2025