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Raising a License Defense In a Copyright Infringement Action

By Christine Lepera and Christopher T. Bavitz

The Copyright Act (17 U.S.C. Sec. 204) provides that '[a] transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent.' A copyright infringement defendant may argue that it made use of a plaintiff's work pursuant to a grant of rights or license from the plaintiff. Where a license is written, the consent defense is relatively straightforward, and frequently turns on whether or not the defendant acted in accordance with the terms and scope of the license at issue. Where no writing exists, however, a plaintiff can more readily challenge such consent and force the defendant to face the writing hurdle imposed by Sec. 204.

Notwithstanding the statutory requirement, in recent years federal courts have demonstrated an increasing willingness to hold parties to the terms of implied or oral license agreements. If a copyright defendant acts pursuant to an oral or implied license, such a license to use a copyrighted work for a particular purpose can preclude a finding of infringement. The oral or implied license doctrine thus provides a powerful defense for a defendant charged with infringement who was granted permission, implicitly or orally, by a plaintiff to use a particular work, but never obtained such consent in writing.

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