Attorney Steve® Copyright Essentials - Affirmative Defenses - Independent Creation 

Introduction

In this blog we discuss the affirmative defense of "independent creation" in the context of copyright law.  When one party accuses another of infringing on copyright with a "substantially similar" song, photograph, art work, or other creative content, the Defendant (or party being accused of infringement) may need to step forward an assert the defense that they independently created their own work, and thus, did not engage in any copying of the Plaintiff's work.  If this can be proven, there is no copyright infringement.

9th Circuit Case Law

In one case from the 9th Circuit Court of Appeal involving sports manufacturer Nike (RentMeester v. Nike), the Court noted:

"Although our cases have not always made this point explicit, the second element has two distinct components: “copying” and “unlawful appropriation.” Sid & Marty Krofft Television Productions, Inc. v. McDonald's Corp., 562 F.2d 1157, 1164–65 (9th Cir. 1977); Arnstein v. Porter, 154 F.2d 464, 468 (2d Cir. 1946); 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.01[B] (2017). Proof of copying by the defendant is necessary because independent creation is a complete defense to copyright infringement. No matter how similar the plaintiff's and the defendant's works are, if the defendant created his independently, without knowledge of or exposure to the plaintiff's work, the defendant is not liable for infringement. See Feist, 499 U.S. at 345–46. 

In another case Three Boys Music Corp. v. Bolton, 212 F.3d 477, 486 (9th Cir. 2000) the Court noted:

Bolton and Goldmark also contend that their witnesses rebutted the Isley Brothers' prima facie case of copyright infringement with evidence of independent creation. By establishing reasonable access and substantial similarity, a copyright plaintiff creates a presumption of copying. The burden shifts to the defendant to rebut that presumption through proof of independent creation. See Granite Music Corp. v. United Artists Corp.,532 F.2d 718, 721 (9th Cir.1976).  The appellants' case of independent creation hinges on three factors: the work tape demonstrating how Bolton and Goldmark created their song, Bolton and Goldmark's history of songwriting, and testimony that their arranger, Walter Afanasieff, contributed two of five unprotectible elements that they allegedly copied. The jury, however, heard the testimony of Bolton, Goldmark, Afanasieff, and Ricigliano about independent creation. The work tape revealed evidence that Bolton may have subconsciously copied a song that he believed to be written by Marvin Gaye. Bolton and Goldmark's history of songwriting presents no direct evidence about this case. And Afanasieff's contributions to Bolton and Goldmark's song were described by the appellants' own expert as "very common." Once again, we refuse to disturb the jury's determination about independent creation. The substantial evidence of copying based on access and substantial similarity was such that a reasonable juror could reject this defense.

In the Ganite case cited above the Court noted:

We recognize that a statutory copyright does not give a monopoly over an idea or a musical phrase, but merely protects against the unlawful reproduction of an original work. A. Weil, Copyright Law 383 (1917). A composer's copyright is an absolute right to prevent others from copying his work. Fred Fisher, Inc. v. Dillingham, 298 F. 145, 148 (S.D.N.Y.1924).

This protection is subject to definite limitations. As stated by Learned Hand in Fisher, at 147, "[T]he law imposes no prohibition upon those who, without copying, independently arrive at the precise combination of words or notes which have been copyrighted." Stated another way, "If A produces identically the same work as B, by independent thought, in good faith, without hearing, or seeing, B's work, both A and B would be entitled to individual copyrights in their individual works." Weil at 384.

Thus a copyright differs from a patent. Patents are monopolies of the contents of a work as well as the right to reproduce the work itself — one may therefore infringe a patent by innocent and independent reproduction. To the contrary, an "independent reproduction of a copyrighted musical work is not infringement; nothing short of plagiarism will serve." Arnstein v. Marks Corp., 82 F.2d 275 (2 Cir. 1936).

Therefore, a copyright infringement action depends upon whether the defendant copied from the plaintiff, or whether he independently created his composition. Any evidence pertaining to the manner in which the defendant created his composition is logically relevant: his training, the subject matter of the art, his access to other works or to the plaintiff's composition.

Evidence of similar musical phrases appearing in prior works is also logically relevant to rebut the inference of copying. Such evidence demonstrates that the musical language was of such ordinary and common occurrence that the probability of independent, coincidental production was great.

While this court has not found any cases which have expressly discussed the relevancy or admissibility of prior works in these circumstances, the law is replete with cases which assumed, sub silentio, that prior works were relevant. One example is the case of Stevenson v. Harris, 238 F. 432 (S.D.N.Y.1917), which involved a plaintiff's novel and a defendant's play. The two works had many common elements. Both stories take place in Europe at the beginning of World War I and involve a female spy, a stolen passport, an American man and woman, an inn, the use of shadows on a screen, and an unexpected marriage.

The court held:

"Of necessity, certain kinds of incidents must be found in many books and plays, and originality, when dealing with incidents familiar in life or fiction, lies in the association and grouping of those incidents in such a manner that the work under consideration presents a new conception of a novel arrangement of events.

"It will never do to hold that, because an incident here or there is used in the later production which was used . . in the former copyrighted book or play, therefore the later production infringes the copyright of the former." Id.,at 436.

  See Granite Music Corp. v. United Artists Corp., 532 F. 2d 718 - Court of Appeals, 9th Circuit 1976. 

Contact a copyright infringement attorney

We can help Plaintiff and Defendants in music infringement, photographs, videos, fonts, jewelry, fabric design, software and other copyrighted content cases.  We can analyze the viability of a claim for independent creation. Call us at (877) 276-5084 or fill out the contact form.