Attorney Steve® - Copyright Essentials- Defenses - Abandonment
Abandonment of Copyright is an "affirmative defense" to copyright infringement, which means the defendant has the burden to PLEAD and PROVE the defense applies. Here is a general overview of what's needed.
"Copyright may also be abandoned if the owner “performs some overt act indicating an intention to abandon.” Micro Star v. Formgen Inc., 154 F.3d 1107, 1114 (9th Cir. 1998).
Abandonment of copyright (sometimes referred to as waiver) . . . constitutes an effective defense in an infringement action.” Taylor Holland LLC v. MVMT Watches, Inc., 15-cv-03578, 2016 WL 6892097, at *9 (C.D. Cal. Aug. 11, 2016).
Abandonment “must be manifested by some overt act indicative of a purpose to surrender the rights and allow the public to copy.” (citing Hampton v. Paramount Pictures Corp., 279 F.2d 100, 104 (9th Cir. 1960).
Abandonment has two essential elements:
(1) an intent to surrender all rights in the work;
(2) an overt act evidencing that intent.
The Ninth Circuit has stated that a copyright owner can abandon some rights without abandoning all rights. See Micro Star v. FormGen Inc., 154 F.3d 1107, 1114 (9th Cir. 1998) (“Given that [FormGen] overtly encouraged players to make and freely distribute new levels, FormGen may indeed have abandoned its exclusive right to do the same. But abandoning some rights is not the same as abandoning all rights, and FormGen never overtly abandoned its rights to profit commercially from new levels.”); see also Interscope Records v. Time Warner, Inc, 10-cv-01662, 2010 WL 11505708, at * (C.D. Cal. June 28, 2010) (“[A]bandonment of rights in certain copyrighted work does not, without more, act as a blanket waiver of abandonment of rights to others.”); Blizzard Entertainment, Inc. v. Lilith Games (Shanghai) Co. Ltd., 15-cv-04084, 2017 WL 2118342, at *2 (N.D. Cal. May 16, 2017) (“Abandonment, like a transfer, may be made in whole or in part.”).
An example might be if a holder of the rights to video or news clips says "anyone can post, reuse, modify or commercially use my videos, I don't care about my copyrights any longer." This could manifest and intent (and overt act manifesting same) that could be grounds to plead the affirmative defense of abandonment of copyright.
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