Copyright infringement is the unauthorized use of a work that qualifies under the Copyright Act for copyright protection.  Unauthorized use means that the permission of the copyright owner was not granted for the use.

Copyright Infringement is the taking of rights that a copyright owner has without permission:

  • Right to create copies of a work
  • Right to sell copies of a work
  • Right to publicly perform the work
  • Right to license the work
  • Right to create derivative works of the original work

17 U.S.C. § 501

An unauthorized use of copyrighted material in any of the above situations violates the exclusive rights of the copyright holder and is copyright infringement.

Copyright protection exists at the creation of a work that qualifies under the Copyright Act.  The ability to litigate a copyright infringement claim in federal court, however, can only come after the copyright registration is recorded in the Library of Congress.

Types of Works

Creative works, an original work of authorship fixed in any tangible medium of expression may be registered under the Copyright Act.  These are enumerated as:

(1) literary works;

(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8)architectural works.A literary work can be a book, pamphlet, magazine, advertising – anything with words.

A musical work is the sheet music – or any instructions on how to play the work.  The sound recording is separate and apart from the musical work.  Most popular music

Sometimes, one work may infringe accidentally by being too close to a previous work; therefore, the infringement is caused by being a derivative work.  How can one tell if the junior work is too close to an older work?

Copyright law provides very little aid in helping to determine if two works of art are similar or not. Cases like this come down to a determination of facts.

Star Athletica, LLC v. Varsity Brands, Inc.: The Landmark Copyright Decision of 2017

In the pivotal 2017 Supreme Court case, Star Athletica, LLC v. Varsity Brands, Inc., the court examined the copyrightability of aesthetic elements in “useful articles” such as clothing. The court established a two-prong “separability” test to determine copyright eligibility: the design must be identifiable as art separate from the article’s utilitarian function, and it must be able to exist independently as a pictorial, graphic, or sculptural work.

Background and Dispute

Varsity Brands, a leading cheerleading uniform manufacturer, sued rival Star Athletica for producing similar designs at lower prices, alleging copyright infringement. The case centered on whether Varsity’s design elements—such as stripes and chevrons—were copyrightable despite being integral to the uniforms’ functional purpose.

Court’s Analysis and Decision

Rejecting Star Athletica’s argument that the designs were dictated by their utilitarian purpose, the Supreme Court ruled in favor of copyrightability for Varsity’s designs. The court declined to address whether Varsity’s designs were original enough to warrant copyright, leaving Varsity’s registrations intact.

Implications for the Fashion Industry

This decision has significant implications for fashion designers and the apparel industry, underscoring a shift towards recognizing copyright protection for design elements in clothing. While some in the industry welcomed the decision as a protection against imitation, others expressed concerns about its implications for fashion innovation and the potential stifling of design elements that could become trend-based.

Legal and Industry Reactions

The ruling has been both praised and critiqued for its potential impact on design freedoms. It also sparked a broader debate on intellectual property rights within the fashion industry, affecting how designs are protected and shared.

Continued Legal Developments

Following this case, numerous entities, including other fashion companies and intellectual property scholars, have continued to explore the boundaries of copyright law as it applies to functional and decorative elements of clothing.


Star Athletica v. Varsity Brands not only redefined copyright parameters for the fashion industry but also set a precedent for how aesthetic designs integrated into functional items are treated under U.S. copyright law.

Registering the Copyright is a Requirement

As stated here many times, a copyright registration from the U.S. Copyright Office of the Library of Congress is required before a copyright infringement legal action may be filed.  Copyright notice (by use of the c-in-a-circle logo on a work) is not required.  The registration is required in order to show the ownership of the copyright properly and that ownership must match the registration certificate – any assignments or transfers must also be registered. The valid copyright is required in the United States – which is atypical when looking at copyright law around the world.

Copyright ownership comes from the creation of the work that qualifies under the Copyright Act.  Enforcement, especially with an infringement of copyright, must come with the registration.

“Wheaton v. Peters” (1834) was a landmark U.S. Supreme Court case that fundamentally shaped copyright law in the United States. The dispute arose when Henry Wheaton, a former reporter of the Supreme Court’s decisions, sued Richard Peters for publishing abridged versions of Wheaton’s earlier reports, which made them more accessible and affordable. The case reached the Supreme Court after Wheaton lost at the circuit court level.

The Supreme Court, under Justice John McLean, held that copyright in the United States is a creation of statute rather than common law, particularly for published works. It emphasized that once an author publishes a work, they no longer hold a perpetual exclusive right to its future publication; such rights must be defined and protected under statutory law. This decision reinforced that copyright registration and other formalities are necessary conditions for copyright protection. The Court also clarified that judicial opinions cannot be copyrighted, establishing a precedent that the text of the laws and decisions, which govern everyone, should not be monopolized.

Supreme Court Decision: Fourth Estate Public Benefit Corp. v. (Decided March 4, 2019)

In a unanimous ruling, the Supreme Court clarified the prerequisites for filing a copyright infringement lawsuit, holding that a copyright must be officially registered with the Copyright Office—or the application denied—before an infringement suit can be initiated. This decision, authored by Justice Ginsburg, settles differing interpretations across various circuits regarding the timing of such lawsuits.  Aesthetic design elements on useful articles like clothing can be copyrightable if they can be separately identified as art and exist independently of the useful article.

Background:Fourth Estate Public Benefit Corp., a news organization, sought to sue for displaying their articles without a license. However, at the time of the lawsuit, the Copyright Office had not yet acted on Fourth Estate’s registration applications. contested the lawsuit as premature based on Section 411(a) of the Copyright Act, which stipulates that legal action for copyright infringement cannot commence until the copyright claim is either registered or explicitly denied.

Key Issue:The core issue was whether a copyright claim is considered “registered” upon the mere submission of the necessary application, deposit, and fee, or only after the Copyright Office has formally processed the application.

Court’s Holding:The Court held that the registration requirement is met only when the Copyright Office has acted on the application, not merely at the time of submission. This interpretation aligns with the text of the Copyright Act and ensures that the owner of copyright completes the necessary bureaucratic steps before heading to court.


  1. Delay in Enforcement: The Court recognized that the processing time for registration applications could be lengthy, potentially allowing ongoing infringement. However, it noted that such administrative delays are to be addressed by Congress through increased funding or staffing, not by the judiciary.
  2. Monetary Relief: Despite potential delays, copyright owners are entitled to seek damages for any infringement that occurs prior to registration, including actual damages and the infringer’s profits. However, the decision did not specifically address how this ruling impacts the recovery of statutory damages, which are generally more favorable to copyright owners but restricted under Section 412 if the infringement occurred before registration.
  3. Incentives for Early Registration: The decision is likely to prompt copyright owners to register their works sooner and possibly utilize the expedited processing option, which incurs an additional fee, to mitigate enforcement delays.
  4. Prepublication Infringement: Special provisions remain for works that are particularly vulnerable to infringement before publication, such as films and live broadcasts, where owners may still initiate infringement suits before registration is complete.

Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., 595 U.S. ___ (2022), was a United States Supreme Court case in which the Court held that a lack of either factual or legal knowledge can excuse an inaccuracy in a copyright registration

Works that are in the public domain are not subject to copyright enforcement and no infringement can be claimed on a work in the public domain.  Works in the public domain are works that do not qualify for copyright protection.

Copyright Infringement Attorney

Examples of Copyright Infringement

A copyright infringement lawsuit is a civil action that must be brought in federal court.

Bright Tunes Music Corp. v. Harrisons Music, Ltd – the George Harrison “My Sweet Lord” lawsuit:

Copyright infringement is famously seen in a case like Bright Tunes Music Corp. v. Harrisons Music, Ltd. 722 F.2d 988 (2d Cir. 1983), where George Harrison’s “My Sweet Lord” was found to infringe upon The Chiffons’ “He’s so Fine.” There, the repetition of several notes in “He’s so Fine” was also in “My Sweet Lord,” with a little variation. There is much reliance on the expert testimony in the decision. The paintiffs in this case won because the music was so similar and because of the popularity of the plaintiffs’ song “He’s so Fine.”

This leads to the issue of discussing the facts in any new issue. The problem is that every person comes with his or her own experiences and biases, which could certainly influence a jury during a trial with complicated issues as most copyright cases have.  Also, one wonders if the art form has an effect. Is a pattern of a rhythm in a rap song the same as the notes in the “My Sweet Lord” case? Does popularity matter?

Whitmill vs Warner Brothers – Does a Tattoo Deserve Copyright Protection?

Just weeks before the release of “The Hangover II,” the much-anticipated sequel to the highest-grossing comedy of all time, an interesting legal battle surfaced highlighting a key question: what is copyright infringement? Tattoo artist S. Victor Whitmill brought this question to the forefront when he filed a copyright infringement lawsuit against Warner Brothers.

Whitmill alleged that the facial tattoo worn by actor Ed Helms in the film, which duplicated the design he created for boxing champion Mike Tyson, was a clear case of copyright infringement. As the court proceedings unfolded, Whitmill sought a preliminary injunction to halt the film’s Memorial Day weekend release, a decision that would have significant repercussions.

The stakes were high as U.S. District Court Judge Catherine D. Perry weighed the implications of granting an injunction. With Warner Bros. having already spent nearly $80 million on promoting the film and distributed prints to over 3,700 theaters, the financial fallout from delaying the release could be monumental. Theaters that had been selling advanced tickets would suffer severe losses, and Warner Bros. would face potential damage claims.

Despite the controversy, Judge Perry denied the preliminary injunction, noting the undue harm it would cause to Warner Bros. and third parties. However, the issue of copyright infringement was far from resolved, as Whitmill also sought a permanent injunction to prevent further distribution of the film, including its DVD release. Judge Perry’s initial rulings allowed these copyright claims to progress toward a trial, indicating a potential liability for Warner Bros. for using Tyson’s tattoo without Whitmill’s explicit consent.

The legal debate centered around the extent of copyright rights, especially when it involves artwork on someone else’s body—a relatively uncharted area of copyright law with few precedents. Whitmill’s claim was supported by a tattoo release form signed by Tyson and a copyright registration he filed, asserting ownership over the tattoo’s design.

Warner Bros. defended their actions under the fair use doctrine, arguing that the tattoo in “The Hangover II” was used to parody Tyson, who himself appeared in the film. The fair use defense involves a four-factor test, assessing the purpose, nature, and impact of the copyrighted work’s use. Despite this defense, Judge Perry criticized the studio’s argument, dismissing the parody claim and labeling the use as blatant copyright infringement.

Before the matter could escalate to trial, both parties reached an amicable settlement during mediation, the details of which remain undisclosed. The resolution ensured that “The Hangover II’s” DVD release proceeded without interruption, and the iconic Tyson tattoo remained on Helms’ face in the film.

This case serves as a compelling example of the complexities surrounding copyright infringement, especially in creative industries where the lines between homage and theft can blur. As we continue to navigate these legal waters, “The Hangover II” remains a pivotal case study in understanding the breadth and depth of copyright law.

Katy Perry’s Dark Horse Case

In a similar vein, the “Marcus Gray et al. v. Katy Perry et al.” lawsuit brought copyright infringement into the spotlight within the music industry. Plaintiffs Marcus Gray, Emanuel Lambert, and Chike Ojukwu claimed that Katy Perry’s song “Dark Horse” infringed on their song “Joyful Noise” due to similarities in a musical phrase known as an “ostinato.” The case revolved around whether such similarities constituted infringement under 17 U.S.C § 106.

Initially, a jury sided with Gray, but Judge Christina A. Snyder overturned this verdict, citing a failure to meet the extrinsic test for substantial similarity. Snyder’s decision, later affirmed on appeal, underscored the complexities of proving copyright infringement in music, particularly when common musical elements are involved. The defendants argued that “Dark Horse” was independently created and that the similarities were incidental, involving elements too basic to warrant copyright protection.

Marcus Gray filed a notice of appeal to the Ninth Circuit on April 13, 2020.  The Ninth Circuit ruled 3–0 in March 2022 in Perry’s favor, upholding the District Court’s ruling. In the opinion, the court stated “The portion of the ‘Joyful Noise’ ostinato that overlaps with the ‘Dark Horse’ ostinato consists of a manifestly conventional arrangement of musical building blocks. Allowing a copyright over this material would essentially amount to allowing an improper monopoly over two-note pitch sequences or even the minor scale itself.”

Skidmore v. Led Zeppelin

The similarities between Led Zeppelin’s “Stairway to Heaven” and Spirit’s 1968 instrumental “Taurus” have been contentious. Spirit guitarist Randy California noted in the 1996 reissue liner notes of Spirit’s debut album that many questioned the resemblance to “Taurus,” released two years before “Stairway to Heaven.” Led Zeppelin, who once opened for Spirit, also included another Spirit song in their live sets, raising further speculations about their influences.

In May 2014, a lawsuit was filed against Led Zeppelin by Spirit’s bassist Mark Andes and a trust representing California, seeking a songwriting credit for the late California and an injunction to stop the release of any album containing “Stairway to Heaven.” Financial constraints and misconceptions about the statute of limitations previously prevented this legal action. The plaintiffs hoped to secure future profits from the song, though past earnings from “Stairway to Heaven,” estimated at over $550 million, were not claimable.

The legal proceedings escalated when, on April 11, 2016, Los Angeles District Judge Gary Klausner determined that the case held enough merit for a jury trial, scheduled for May 10. Represented by trustee Michael Skidmore, the case argued for the recognition of California’s creative contribution. However, on June 23, the jury concluded that the songs were not sufficiently similar to warrant copyright infringement. Subsequent appeals in 2017 and a decision in 2018 by the Ninth Circuit to vacate the initial ruling led to a rehearing en banc in June 2019.

Amidst these developments, a significant legal opinion emerged from the Ninth Circuit, which noted that many elements of classic rock songs recorded before 1978 might not be copyright-protected if not included in the sheet music filed with the Copyright Office. This was exemplified by the fact that the disputed intro of “Stairway to Heaven” was not part of the deposit copy submitted by Led Zeppelin.

On March 9, 2020, the Ninth Circuit ultimately sided with Led Zeppelin, abolishing the “inverse ratio rule” used in past copyright decisions. This rule had suggested a stronger likelihood of infringement if substantial similarity and access were proven. This decision also influenced other copyright cases, including overturning a prior ruling against Katy Perry’s “Dark Horse.” The Supreme Court’s refusal to hear an appeal on October 5, 2020, effectively ended the dispute, affirming the ruling in favor of Led Zeppelin and setting a precedent that may affect future copyright litigation.

What is Required in a Claim of a Copyright Violation?

​A claim of copyright infringement is sufficient when the plaintiff asserts: “ ‘(1) which specific original works form the subject of the copyright claim; (2) that the plaintiff owns the copyrights in those works; (3) that the copyrights have been registered in accordance with the statute; and (4) by what acts [and] during what time the defendant infringed the copyright.’ ” (What is the infringing activity?) Krasselt v. Joseph E. Seagram & Sons, Inc., No. 01 Civ. 2821, 2002 WL 1997926, at *1, 2002 U.S. Dist. LEXIS 16136, at *3–4 (S.D.N.Y. Aug. 28, 2002) (quoting Plunket v. Doyle, 99 Civ. 11006, 2001 WL 175252, at *4, 2001 U.S. Dist. LEXIS 2001, at *4 (S.D.N.Y. Feb. 22, 2001)), see also Mahnke v. Munchkin Prods. Inc., No. 99 Civ. 4684, 2001 U.S. Dist. LEXIS 7558, at *6 (S.D.N.Y. Mar. 29, 2001).

​To plead the first element, the plaintiff is not required to assert exactly which individual elements of the copyrighted works were infringed. See id. at *5 (citing Tin Pan Apple v. Miller Brewing Co., 737 F.Supp. 826, 828 (S.D.N.Y.1990)) (denying motion to dismiss for where complaint alleged that defendants copied “one or more” of plaintiff’s copyrighted works; “the precise meaning of ‘one or more’ may be explored on discovery”). By listing the copyright registration numbers issued by the United States that correspond to each of its copyrighted jewelry designs, annexing copies of the United States Certificates of Copyright Registration, and stating that the defendant has infringed upon one or more of these copyrights, the plaintiff satisfies the first element.

What is contributory infringement?

“To state a claim for contributory infringement, a plaintiff must allege facts that a defendant ‘with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another.’ ” Rams v. Def Jam Recordings, Inc., 202 F. Supp. 3d 376, 383 (S.D.N.Y. 2016) (quoting Gershwin Pub. Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971)). “The knowledge standard is an objective one; contributory infringement liability is imposed on persons who know or have reason to know of the direct infringement.” Arista Recs., LLC v. Doe 3, 604 F.3d 110, 118 (2d Cir. 2010) (internal quotation marks omitted). “In weighing the knowledge requirement, courts consider evidence of actual and constructive knowledge, including cease-and-desist letters, officer and employee statements, promotional materials, and industry experience.” Capitol Recs., LLC v. ReDigi Inc., 934 F. Supp. 2d 640, 658 (S.D.N.Y. 2013), aff’d, 910 F.3d 649 (2d Cir. 2018). “Without a showing of a direct copyright infringement, secondary liability cannot be maintained.” Spinelli v. Nat’l Football League, 903 F.3d 185, 197 (2d Cir. 2018).

Copyright Infringement is not a simple concept in law. If you need to speak to a copyright infringement attorney, please call Verna Law, P.C. at 914-908-6757 or send an e-mail to