9th Cir. Model Jury Instr. (Civil) 17.24

The defendant [name] contends that a copyright does not exist in the plaintiff [name]’s work because the plaintiff [name] abandoned the copyright. The plaintiff [name] cannot claim ownership of the copyright if it was abandoned. To show abandonment, the defendant [name] has the burden of proving each of the following by a preponderance of the evidence:

First, the plaintiff [name] intended to surrender [ownership] rights in the work; and

Second, an act by the plaintiff [name] evidencing that intent.

Mere inaction [or publication without a copyright notice] does not constitute abandonment of the copyright; however, [this may be a factor] [these may be factors] for you to consider in determining whether the plaintiff [name] has abandoned the copyright.

If you find that the plaintiff [name] has proved [his] [her] [other pronoun] claim[s] in accordance with Instruction[s] [insert cross reference to the pertinent instructions on the plaintiff’s theory of infringement], your verdict should be for the plaintiff [name], unless you find that the defendant [name] has proved each of the elements of this affirmative defense, in which case your verdict should be for the defendant [name].