We’ve been speaking in recent posts about copyright infringement, first as the claim came up in a case involving Cox Communications, and then with respect to the elements that must generally be proven in copyright infringement cases. As we noted last time, proving that original, constituent elements of a copyrighted work have been copied requires showing not only actual copying, which we spoke a bit about last time, but also improper appropriation.
Improper appropriation requires a showing that the work produced by the defendant is substantially similar to the original work. The key question in determining similarity is whether an ordinary observer or listener would detect the similarities between the two works without having the alleged similarities suggested to him or her by others.
Application of this test is subjective, and the exact way in which the test is applied differs depending on the jurisdiction. For example, some courts don’t distinguish between original and unoriginal elements of a work when determining whether there has been a copyright violation, but only look to the work as a whole, while other courts do make a distinction and primarily focus on original elements of the alleged copyrighted work. Therefore, in both enforcing and defendant against a copyright claim, it is important to work with an experienced attorney who understands the local law and how that law has been applied to cases such as the one at hand.
For businesses, avoiding copyright disputes is also an important task, and businesses can certainly benefit from working with experienced counsel to ensure that they reduce their risk of becoming involved in unnecessary copyright litigation.