What Counts as Copyright Infringement: The Elements, Explained for Businesses

Last updated: November 2026

Copyright infringement is the violation of an exclusive right the Copyright Act gives the owner of an original work: reproducing it, distributing it, displaying or performing it publicly, or adapting it. (17 U.S.C. §§ 106, 501(a).) To prove it, a plaintiff must show two things: ownership of a valid copyright, and copying of the elements of the work that are original. Kolmogorov Law, P.C. litigates copyright claims for California businesses in Orange County and Los Angeles, on both sides of the dispute.

Call (909) 235-6116 or contact us online to discuss a copyright claim or a copyright accusation against your business.

The two elements of copyright infringement

The Supreme Court stated the test in one sentence: to establish infringement, the plaintiff must prove ownership of a valid copyright and copying of constituent elements of the work that are original. (Feist Publications, Inc. v. Rural Telephone Service Co. (1991) 499 U.S. 340, 361.) Nearly every copyright case I handle turns on one of those two elements, and usually the second.

Ownership sounds simple. It is not. The copyright belongs to the author. For work an employee creates within the scope of the job, the employer is treated as the author. For work a contractor creates, the contractor owns it unless a signed writing says otherwise. (17 U.S.C. § 201(a), (b).) A company that paid a freelancer for its logo, its product photos, or its website code often does not own the copyright in them. That problem surfaces the moment the company tries to sue.

Copying has two parts of its own. The plaintiff has to show that the defendant actually copied rather than independently created something similar, which is usually proven by access plus similarity. Then the plaintiff has to show that what was copied is protected expression, not an idea, a fact, or a functional element.

What copyright protects and what it does not

Protection attaches to original works of authorship fixed in a tangible medium: text, photographs, graphics, software, video, music, and architectural plans among them. (17 U.S.C. § 102(a).) Originality requires only independent creation and a minimal degree of creativity. (Feist, 499 U.S. at p. 345.)

The statute then draws the line that decides most business cases. Copyright never extends to an idea, procedure, process, system, method of operation, concept, principle, or discovery, no matter how it is described in the work. (17 U.S.C. § 102(b).) Facts are not protected either, because nobody authored them. (Feist, 499 U.S. at pp. 347-348.)

So a competitor who adopts your business model, your pricing structure, or your training method has not infringed a copyright. A competitor who copies the manual you wrote to explain that method probably has.

Copyright infringement examples from business disputes

Three patterns account for most of our copyright matters.

A marketing agency builds a client's website, the relationship ends badly, and the client keeps using the site. The agency claims it owns the code, the copy, and the photographs. Whether it does depends on the contract and on who created what.

A former employee leaves for a competitor and the competitor's new sales deck, product catalog, or software contains passages lifted from the old employer's materials. Here the copyright claim travels with trade secret and contract claims, and the copyright claim is often the cleanest of the three.

A company downloads a stock photograph, a font, or a chart from the internet, uses it in an ad or a blog post, and receives a demand letter two years later. That is the recipient side, and it is the subject of our page on responding to a copyright demand letter.

Proving copying

Direct evidence of copying is rare. Courts allow it to be inferred from access to the original plus similarity between the works. Access can be shown by a prior business relationship, by wide public availability, or by an employee who moved from one company to the other. Similarity is judged on the protected expression alone. Identical typos, dead links, and leftover metadata usually end the argument.

Registration, deadlines, and who may sue

A copyright exists from the moment the work is fixed, but a United States work cannot be the subject of an infringement lawsuit until the Copyright Office has registered it or refused registration. (17 U.S.C. § 411(a).) The timing of registration also controls whether statutory damages and attorney fees are available at all. (17 U.S.C. § 412.) Our page on the Section 411 requirement explains why registration must come first and how to file.

The person entitled to sue is the legal or beneficial owner of the exclusive right that was infringed. (17 U.S.C. § 501(b).) A nonexclusive licensee generally cannot. The suit must be filed within three years after the claim accrued. (17 U.S.C. § 507(b).)

Defenses we see most often

Lack of ownership comes first; the plaintiff sues over a work it commissioned but never acquired. Then independent creation, where the defendant can show its own drafts and timestamps. Then the idea-expression line, where the only things copied were unprotectable. Then license or implied license, which arises constantly in website and agency disputes. Then fair use, which is narrower in commercial cases than most business owners assume.

Where these cases are heard and what we do

Copyright claims belong exclusively to the federal courts. For Orange County businesses that means the Central District of California in Santa Ana; for Los Angeles businesses, the courthouse on First Street. We handle the investigation, the demand or the response, registration where it is missing, and the lawsuit when one is needed. Remedies run from injunctions to actual damages and profits or statutory damages and attorney fees. Our copyright case study shows how such a matter unfolds, and our intellectual property litigation practice covers the related trademark and trade secret claims.

What to bring to the first meeting

Bring the work itself in its earliest dated form, the registration certificate or application if one exists, and any contract with the person who created it. Bring the copy you believe infringes, with dates and screenshots. If you are the one accused, bring the demand letter, the material in question, and your records of where it came from.

Frequently asked questions

What is copyright infringement in simple terms?

It is using someone else's original creative work, such as text, photos, code, or video, in a way reserved to the owner without permission: copying it, distributing it, displaying it publicly, or adapting it. Ideas, facts, and methods are not covered. The owner must prove a valid copyright and copying of protected expression.

What are the elements of copyright infringement?

Two: ownership of a valid copyright, and copying of the original elements of the work. (Feist, 499 U.S. at p. 361.) Copying is usually inferred from access plus substantial similarity in protected expression. Before suing on a United States work, the owner must also have a registration or a refusal from the Copyright Office. (17 U.S.C. § 411(a).)

What are common examples of copyright infringement by businesses?

Using stock photos without a license, copying a competitor's website text or product descriptions, and reusing a former employer's training manuals or sales materials. Installing more software copies than the license allows and republishing another company's video in marketing are two more. Copying a business idea or method is not infringement.

Does copyright infringement require intent?

No. Infringement is a strict liability claim; a defendant who did not know the work was protected is still liable. Intent matters at the damages stage, where willful infringement can increase statutory damages and innocent infringement can reduce them. (17 U.S.C. § 504(c).)

How long do I have to sue for copyright infringement?

Three years from when the claim accrued. (17 U.S.C. § 507(b).) For ongoing infringement, such as a website that has displayed your photos for years, how the three years are counted is contested, and waiting can cost you part of the recovery. Do not wait; evidence disappears.

Talk to a California copyright litigation attorney

If your work has been copied, or your business has been accused of copying, call (909) 235-6116 or contact us online. Kolmogorov Law, P.C. is at 327 Magnet, Irvine, CA 92618, and represents businesses in Orange County, Los Angeles, and throughout California. See also our pages on copyright damages and intellectual property litigation.

This page provides general information about federal copyright law and is not legal advice. Outcomes depend on the work, the facts of the copying, and the court.