To establish that copyright infringement has occurred, you need to establish ownership, validity and copying. Copying may be proved by showing that a party had access to the work or that the accused work is substantially similar to the registered work.

Common defenses to copyright infringement include:
  • Fair use
  • Abandonment
  • Fraud
  • Estoppel
  • Laches
  • Other equitable defenses
Other less-common defenses include:
  • First amendment
  • Independent creation
  • Misuse
  • Implied license
  • First-sale doctrine
Fair use is perhaps the most common defense to copyright infringement. The fair-use defense focuses on four factors: the purpose of the use, the nature of the copyrighted work, the portion of the work that is being used and the effect of the use on the market for the work.

Common remedies for copyright infringement include statutory damages, actual damages, injunction, seizure and attorney’s fees.

Attorney’s fees are a key consideration in copyright cases. Attorney’s fees are routinely awarded to prevailing parties in copyright cases, which is unusual in U.S. law. Attorney’s fees are also commonly awarded to a prevailing defendant, which is very unusual in U.S. law.