Guides · Copyright Litigation
Proving Copyright Infringement
In the Fifth Circuit, a plaintiff must prove ownership of a valid copyright, factual copying, and substantial similarity between the works' protected expression.
· Law checked through October 21, 2026
In Short
Copying is usually shown by access plus probative similarity, or by similarity so striking that only copying explains it. Those who enable infringement can be liable too, but after Cox v. Sony (2026), only if they induced it or offered a service tailored to it. Related federal claims cover circumventing access controls and stripping copyright information, and many Texas state-law claims that duplicate copyright are preempted.
Common situations.
- A musician claims a hit song copies a demo the musician once sent to a record label.
- A software company claims a former licensee's new product copies its program's structure.
- A website hosts user uploads that include infringing photos.
- A plaintiff sues in Texas state court for conversion of software, and the defendant removes the case to federal court.
The elements.
| Element | What it requires | Authority |
|---|---|---|
| Ownership of a valid copyright | Original, fixed expression owned by the plaintiff, usually shown by a registration certificate | 17 U.S.C. §§ 410(c), 501(b) |
| Factual copying | Access plus probative similarity; or, without proof of access, striking similarity | Armour v. Knowles, 512 F.3d 147 (5th Cir. 2007); Batiste v. Lewis, 976 F.3d 493 (5th Cir. 2020) |
| Substantial similarity | Enough similarity in protected expression that a layperson would find the copying actionable | Peel & Co. v. Rug Mkt., 238 F.3d 391 (5th Cir. 2001) |
The copying must also infringe one of the owner's exclusive rights: reproduction, adaptation, distribution, public performance, public display, or digital audio transmission of sound recordings (17 U.S.C. § 106).
Proving copying.
- Access. The plaintiff must show a reasonable opportunity to view or hear the work before the defendant created its own, not a bare possibility. Sending a demo to a large company, or selling a work in a local store, may not be enough without evidence linking it to the people who created the accused work (Armour; Batiste).
- Probative similarity. Similarities that, in the normal course, would not be expected if the works were created independently.
- Striking similarity. Without proof of access, the similarity must be so striking that it can be explained only by copying (Batiste).
- Independent creation. A defendant who created its work without copying does not infringe, however similar the result.
Substantial similarity.
The fact-finder makes a side-by-side comparison of the works, considering only the protected expression and setting aside ideas, facts, and other unprotectable material (Peel & Co., 238 F.3d 391). For computer software, the Fifth Circuit uses the abstraction-filtration-comparison method: break the program into levels of abstraction, filter out unprotectable elements (ideas, elements dictated by efficiency or external factors, and public-domain material), and compare what remains (Eng'g Dynamics, Inc. v. Structural Software, Inc., 26 F.3d 1335 (5th Cir. 1994)). See Software, Website, and Digital Content Disputes.
Secondary liability.
| Theory | What it requires | Authority |
|---|---|---|
| Inducement | Distributing a product or service with the object of promoting infringement, shown by clear expression or other affirmative steps | Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) |
| Contributory infringement | Intent that the service be used to infringe: inducing infringement, or providing a service tailored to infringement that is not capable of substantial noninfringing uses. Knowledge that some users infringe, plus continued service, is not enough | Cox Commc'ns, Inc. v. Sony Music Ent., 607 U.S. ___ (Mar. 25, 2026); Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984) |
| Vicarious infringement | Profiting from direct infringement while declining to exercise a right to stop or limit it | Grokster, 545 U.S. 913 |
The Copyright Act does not reach infringement that occurs entirely abroad, and the Fifth Circuit has held that authorizing such conduct from the United States does not support a contributory claim (Geophysical Serv., Inc. v. TGS-NOPEC Geophysical Co., 850 F.3d 785 (5th Cir. 2017)).
Related federal claims.
| Claim | What it prohibits | Remedies | Authority |
|---|---|---|---|
| Anti-circumvention | Circumventing a technological measure that controls access to a work, or trafficking in circumvention tools | Actual damages or statutory damages of $200 to $2,500 per act of circumvention | 17 U.S.C. §§ 1201, 1203 |
| Copyright management information | Knowingly removing or altering author, title, or license information, or providing false information, to enable or conceal infringement | Actual damages or statutory damages of $2,500 to $25,000 per violation | §§ 1202, 1203 |
In the Fifth Circuit, merely using software that someone else had already altered to bypass its protection is not circumvention; the defendant must itself circumvent the measure (MGE UPS Sys., Inc. v. GE Consumer & Indus., Inc., 622 F.3d 361 (5th Cir. 2010)).
Preemption of state-law claims.
The Copyright Act preempts state-law claims that (1) concern works within the subject matter of copyright and (2) protect rights equivalent to the exclusive rights of copyright (17 U.S.C. § 301(a); Carson v. Dynegy, Inc., 344 F.3d 446 (5th Cir. 2003)). A claim survives if it requires an "extra element" that makes it qualitatively different from copyright infringement.
| Texas claim | Result in the Fifth Circuit | Authority |
|---|---|---|
| Conversion of intangible material, or theft under the Texas Theft Liability Act, based on copying | Preempted. Ideas fixed in a tangible medium fall within the subject matter of copyright even though copyright does not protect them | Spear Mktg., Inc. v. BancorpSouth Bank, 791 F.3d 586 (5th Cir. 2015) |
| Trade secret misappropriation | Not preempted, because it requires improper means or a breach of confidence | GlobeRanger Corp. v. Software AG U.S. of Am., Inc., 836 F.3d 477 (5th Cir. 2016) |
| Contract, fraud, and other claims | Depends on whether the claim adds an element beyond copying, distributing, or displaying the work | Carson, 344 F.3d 446 |
A state claim that is completely preempted is treated as a federal copyright claim, so a defendant sued in Texas state court may remove the case to federal court (Spear Mktg.; GlobeRanger).
Sources.
- 17 U.S.C. §§ 106, 301(a), 410(c), 501(b), 1201-1203.
- Armour v. Knowles, 512 F.3d 147 (5th Cir. 2007).
- Batiste v. Lewis, 976 F.3d 493 (5th Cir. 2020).
- Peel & Co. v. Rug Mkt., 238 F.3d 391 (5th Cir. 2001).
- Eng'g Dynamics, Inc. v. Structural Software, Inc., 26 F.3d 1335 (5th Cir. 1994).
- Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005).
- Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984).
- Cox Commc'ns, Inc. v. Sony Music Ent., 607 U.S. ___ (Mar. 25, 2026).
- Geophysical Serv., Inc. v. TGS-NOPEC Geophysical Co., 850 F.3d 785 (5th Cir. 2017).
- MGE UPS Sys., Inc. v. GE Consumer & Indus., Inc., 622 F.3d 361 (5th Cir. 2010).
- Carson v. Dynegy, Inc., 344 F.3d 446 (5th Cir. 2003).
- Spear Mktg., Inc. v. BancorpSouth Bank, 791 F.3d 586 (5th Cir. 2015).
- GlobeRanger Corp. v. Software AG U.S. of Am., Inc., 836 F.3d 477 (5th Cir. 2016).
This guide is general information, not legal advice. Law checked through October 21, 2026. See the Disclaimer.