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Implied License, Copyright

Often a point of contention in intellectual property disputes, particularly disputes and litigation relating to copyrights, is whether an implied license is a viable defense to a claim that you are impropery utilizing someone else’s property (e.g., copyright infringement).

A license, very generally, is permission to use or own something. In the context of copyrights, a license does not need to be written or expressly agreed upon. Indeed, a license to a copyright “can be given orally or implied from conduct.” Pinkham v. Sara Lee Corp., 983 F.2d 824, 831 (8th Cir. 1992) (citing Gracen v. Bradford Exchange, 698 F.2d 300, 303-04 (7th Cir. 1983). An implied license may be granted when (1) the licensee requests the creation of a work, (2) the licensor makes that particular work and delivers it to the licensee who requested it and (3) the licensor intends that the licensee-requestor copy and distribute his work. Teter v. Glass Onion, Inc., 723 F. Supp. 2d 1138, 1147 (W.D. Mo. 2010) (citing Effects Associates v. Cohen, 908 F.2d 555, 558-59 (9th Cir. 1990).

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