The Anatomy of Copyright Infringement

• Publication year: 1999
• Pages: 5
• Citation: Vol. 28 No. 12 Pg. 5

28 Colo.Law. 5 Colorado Lawyer 1999.

1999, December, Pg. 5. The Anatomy of Copyright Infringement

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Vol. 28, No. 12, Pg. 5

The Colorado Lawyer
December 1999
Vol. 28, No. 12 [Page 5]

Articles

The Anatomy of Copyright Infringement
by Richard W. Hanes, Timothy J. Schutz
C Hanes&Schutz P.C., 1999

The client admits that it is somebody else's article, but the prose is perfect and makes the point articulately. The symbolic © at the top of the work is indisputable Acknowledging the rudimental fact that plagiarizing the whole text would likely amount to copyright infringement, the client asks, "How much of a change must be made in this work to avoid infringement?" There is no correct answer however, because it is the wrong question. Whether one work infringes another copyrighted work is a complex and multifaceted inquiry, one that cannot be satisfactorily resolved by simply suggesting that the client can avoid infringement by changing the work by some preordained percentage

Given the increasing importance that artistic and creative endeavors play in our high-tech economy, it is critical that all lawyers have the ability to recognize, in a broad sense, when copyright issues may be present. So, too, is it critical to realize that the issue of copyright infringement is dynamic, and must be resolved on a case-by-case basis.

The purpose of this article is to provide an overview of the various methodologies that the courts have developed and employed in an effort to resolve claims of copyright infringement. No single inquest is the elixir for answering the ultimate inquiry in all settings and contexts; rather, each analysis has its place and application, depending on the character, class, and complexity of the particular work involved and the artistic environment in which it was created. Many defenses to copyright infringement become obvious as the converse of the elements of infringement, but other defenses, such as fair use and estoppel, are not so obvious and cannot be covered due to the limited scope of this article.1

THE INFRINGEMENT ANALYSIS

Broadly speaking, two elements must be proven to establish copyright infringement under the Copyright Act of 19762 ("Copyright Act"): (1) plaintiff's ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.3 Assuming proof of the first element,4 which is not a concern in this article, the determination of the second involves two more distinct inquiries. The first is whether the defendant actually copied the plaintiff's work. The second, which is a mixed question of fact and law, is whether the copied elements constitute protected subject matter. Each of these issues is addressed in turn.

Did the Defendant Copy?

Proof of copying is crucial to any claim of copyright infringement because no matter how similar the two works may be (even to the point of identity), if the defendant did not copy the copyrighted work, there is no infringement.5 As a practical matter, however, it is rare that direct evidence of copying is available. Accordingly, the courts have come to accept indirect evidence for the required proof of copying.6 Indirect proof of copying is typically premised on two factors: (1) the defendant's access to the plaintiff's copyrighted work and (2) the similarity of the defendant's material to the copyrighted work.

Defendant's Access

A copyright claimant may meet its initial burden of proof by showing that the defendant had a "reasonable opportunity to view" or "opportunity to copy" the allegedly infringed work.7 The claimant may offer direct evidence of access when, for example, the work was sent directly to the defendant or a close associate of the defendant. Conversely, the reasonable possibility of access may be inferred when, for example, the complaining work has been widely disseminated to the public. Once the opportunity to view or to copy is established, the burden shifts to the defendant to prove independent creation.8

Similarity

No matter how conclusive the proof of access may be, copying cannot be established without some showing of similarity.9 The requisite degree of similarity is often referred to as "substantial similarity."10 Unfortunately, this term has been employed in the copyright context to mean two different things. On the one hand, it is accepted as the threshold that determines the degree of similarity that suffices for indirect proof of factual copying, once access has been shown. The term also, and more properly, serves to designate the quantum of similarity that is sufficient to prove actionable infringement.11 Thus, as others have suggested, the more appropriate term for factual copying is "probative similarity."12

The degree of probative similarity necessary to show copying varies, depending on the showing of access;13 that is, access and probative similarity are interdependent factors, their evidentiary weights being inversely proportional to one another. Where there is strong proof of access, the necessary showing of probative similarity will be relatively lower. Conversely, access may be inferred if the works are so "strikingly similar" as to preclude a finding of independent creation.14 Thus, the degree of similarity between the accused infringing material and the copyrighted work that is necessary to give rise to the inference that copying has occurred will vary from case to case.15

Did the Defendant Appropriate Protectable Elements of the Work?

Following proof of copying, the inquiry turns to a determination of whether the copying is illicit and actionable. Illegal copying is not limited to duplicating a copyrighted work on a copier or computer, word-for-word plagiarism, bodily appropriation, or literal duplication. Copyright infringement may arise from the copying of the theme, format, characters, style, and other elements of an author's original expression. Furthermore, paraphrasing, adding to, or subtracting from a copyrighted work will not mutate copying into originality. Misappropriating the original creation of someone else is the gravamen of the offense.

While slavish duplication is not the test, not all copying constitutes infringement. If that were true, an author or artist would have an exclusive proprietary right to the letters of the alphabet, the words of the dictionary, common geometric forms, basic ideas, and themes. To be illicit, the copying must appropriate "protectable elements" of the copyrighted work. Stated differently, the copied work must comprise copyrightable subject...