Legal Ramifications – Copyright V – Infringement!

Copyright infringement is a two way street of course.  Someone may copy your work – or you may be charged with copying someone else’s work.  Either way, the plaintiff, that is the copyright owner is going to have to jump over a few hedges to make the case.

First, in the US only, the plaintiff will have to register the work with the United States Copyright Office in washington, DC see http://www.copyright.gov.  Nobody registers blog posts  unless you want to pick a fight with someone, but if you create a significant work, you might want to register it.

The registration will act as a form of proof  in the United States that you own the copyright in the work.  Outside the US you don’t need to register the work, but you will have to prove to a local court’s satifaction that you are the owner and the work has enough originality to be subject to copyright (not originality like a patent, only original to you).

After that, you have to show that the defendant, or the copier, had access to your work.  If the person has copied it exactly, 100%, this access is often assumed or inferred.  If the copying isn’t an exact duplicate, you will have to prove by facts or circumstances that the defendant had access to your work.   This is easier on the Internet where blogs are there for everyone to see (and steal).

Finally,  the plaintiff will have to show that the defendant’s work is “substantially similar” to the plaintiff’s work.  Again, with an exact copy, this is no problem.  But copyright infringement can occur even in cases where much less than the entire work has been taken.

Two methods are used to determine if copyright infringement  has occurred: the subtractive method and the totality method.

The subtractive method, also known as the “abstraction/subtraction approach” seeks to analyze what parts of a copyrighted work are protectable and which are not. The unprotected elements are subtracted and the fact finder then determines whether substantial similarities exist in the protectable expression which remains. For instance, if the copyright holder for the musical West Side Story, alleged infringement, the elements of that musical borrowed from Romeo and Juliet would be subtracted before comparing it to the allegedly infringing work because Romeo and Juliet exists in the public domain (remember term of copyright is now life plus 70 years).

The totality method, also known as the “total concept and feel” approach takes the work as a whole with all elements included when determining if a substantial similarity exists. The individual elements of the alleged infringing work may by themselves be substantially different from their corresponding part in the copyrighted work, but nevertheless taken together be a clear misappropriation of copyrightable material.

Modern courts may sometimes use both methods in its analysis of copyright infrinement.  Once the court is satisified that copyright infringement has taken place, it will rule for the plaintiff and move onto the damages and remedies phase – which we will discuss next week.