Attorney Steve® Copyright Essentials - Proving "Access" in infringement cases.  If you are involved in a copyright dispute and need representation call us at (877) 276-5084.

Introduction

In order to prove copyright infringement, generally, a plaintiff must show the defendant had "access" to the copyrighted work and engaged in substantial copying (the defendants work is substantially similar to the plaintiff's).  If access is not shown, a plaintiff could be subject to paying the defendant's attorney fees if the defendant is deemed the prevailing party.  Here is a case deal with the dueling bananas duct taped to a wall.

General overview of what you need to prove copyright infringement

KAYRA M. HERNANDEZ, Plaintiff, v. CASA FEBUS, INC., et al., Defendants. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. CIVIL NO. 21-1588 (SCC)(HRV)

“Copyright in a work protected under [the Copyright Act] vests initially in the author or authors of the work.” 17 U.S.C. § 201(a). Further, “[t]he Act confers on a copyright owner certain exclusive rights, including the rights to reproduce and distribute the work and to develop and market derivative works.” Perea v. Editorial Cultural, Inc., 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 13 F.4th 43, 52 (1st Cir. 2021)(quoting Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 668, 134 S. Ct. 1962, 188 L. Ed. 2d 979 (2014)). Relevantly, the Act protects original plush-toy designs. Coquico, Inc. v. Rodriguez-Miranda, 562 F.3d 62, 66 (1st Cir. 2009)(citing 17 U.S.C. § 102(a)(5)). Anyone who violates any of the exclusive rights conferred by the Copyright Act may be held liable for copyright infringement. Id. (citing 17 U.S.C. § 501). Two elements must be proven by a plaintiff to establish copyright infringement:

“(1) ownership of a valid copyright,

and

(2) copying of the constituting elements of the work that are original.” Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S. Ct. 1282, 113 L. Ed. 2d 358 (1991)).

“A certificate of copyright constitutes prima facie evidence of ownership and originality of the work as a whole.” Johnson v. Gordon, 409 F.3d 12, 17 (1st Cir. 2005); see also 17 U.S.C. § 410(c). Once the plaintiff produces the certificate of registration, the burden shifts to the defendant “to demonstrate some infirmity in the copyright claim.” Johnson, 409 F.3d at 17.

The presumption of validity is effectively rebutted if the challenging party demonstrates that the holder of the certificate committed fraud in the application for the copyright. Lennon v. Seaman, 84 F. Supp. 2d 522, 525 (S.D.N.Y. 2000). To fulfill its burden to demonstrate fraud, the Defendants must establish that the Plaintiff's application for the copyright:

(1) is factually inaccurate;

(2) the inaccuracies were willful or deliberate;

and

(3) the Copyright Office relied on those misrepresentations. BMG Rights Mgmt (US) LLC v. Cox Commc'n, Inc., 149 F. Supp. 3d 634, 645 (E.D. Va. 2015), aff'd in part, rev'd in part, 881 F.3d 293 (4th Cir. 2018). However, “immaterial, inadvertent errors in application for copyright registration do not jeopardize the validity of the registration.” Data Gen. Corp. v. Grumman Sys Support Corp., 36 F.3d 1147, 1160 (1st Cir. 1994).

To prove that a valid copyright has been infringed, a plaintiff must show that the alleged infringer “copied the protected work” and “that the copying was so egregious as to render the allegedly infringing and infringed works substantially similar.” Coquico, Inc., 562 F.3d at 66 (citations omitted).

To demonstrate actual copying, a party may rely on either direct or circumstantial evidence. (citing Yankee Candle Co. v. Bridgewater Candle Co., 259 F.3d 25, 33 (1st Cir. 2001)). Proving actual copying by direct evidence is generally a difficult task, because “[p]lagiarists rarely work in the open and direct proof of actual copying is seldom available.” Johnson, 409 F.3d at 18. “For this reason, parties typically rely on circumstantial evidence to prove that the defendant had access to the protected work and that the resulting product, when fairly compared to the original, was sufficiently similar that actual copying may properly be inferred.” Society of Holy Transfiguration Monastery, Inc. v. Gregory, 689 F.3d 29, 49 (1st Cir. 2012)(citing Concrete Mach. Co. v. Classic Lawn Ornaments, Inc., 843 F.2d 600, 606 (1st Cir. 1988)). 

“To gauge substantial similarity . . . courts often employ an “ordinary observer” test. Under that metric, the allegedly infringing work will be deemed substantially similar to the allegedly infringed work if an ordinary observer would be disposed to overlook any disparities in the works.” Coquico, Inc., 562 F.3d at 67. Importantly, “[s]ubstantial similarity does not mean absolute identicality.” Id. at 70.

While the question of substantial similarity is ordinarily reserved to the factfinder, that does not mean that it can never be amenable to summary disposition. See T-Peg, Inc. v. Timber Works, Inc., 459 F.3d 97, 112 (1st Cir. 2006)(“Summary judgment on substantial similarity is unusual but can be warranted on the right set of facts.”)

“Widespread dissemination, for example by ‘extensive publication' may be sufficient to demonstrate a reasonable likelihood of access.” Feldman v. Twentieth Century Fox Film Corp., 723 F. Supp. 2d 357, 365 (D. Mass. 2010)(quoting 4-13 Nimmer of Copyright § 13.02). Crediting as true—as I must at this stage—the statement by Casa Febus that its president never received Plaintiff's proposal, does not negate that access has been established.

Actual viewing of the protected material is not required to establish access; access means merely a reasonable opportunity to view the material. See Grubb v. KMS Patriots, L.P., 88 F.3d 1, 3 (1st Cir. 1996). And as previously stated, Plaintiff sufficiently established through uncontested material facts that Defendants had an opportunity to see the Nativity Collection. Further adding to the inference of actual copying, Plaintiff has shown sufficient uncontested material facts to establish probative similarity. Coquico, 562 F.3d at 67 (“What we have called “probative similarity” can, when accompanied by proof of access, serve as harbinger of actual copying.”).

“The similarity inquiry used to indirectly establish copying is referred to as ‘probative similarity' and is ‘somewhat akin to, but different than, the requirement of substantial similarity' that must be shown to prove copyright infringement.” T-Peg, Inc. v. Timber Works, Inc., 459 F.3d at 111. Determining probative similarity “involves dissection of the work . . . to assess whether there are sufficient articulable similarities to justify a finding that the defendant has copied from the protected work.” Concrete Mach. Co., 843 F.2d at 608. Here, the record fully supports a finding of probative similarity between Plaintiff's Nativity Collection and Casa Febus' dolls. The plush dolls are nearly identical in many material respects.

It must be noted that because copyright protection only extends to those components of the work that are original to the author, “assessing substantial similarity requires close consideration of which aspects of the plaintiff's work are protectible and whether the defendant's copying substantially appropriated those protected elements.” Harney v. Sony Pictures TV, Inc., 704 F.3d 173, 17 (1st Cir. 2013). This is so because a work that is sufficiently original to be copyrighted may nonetheless contain unoriginal elements. Id. (citing Feist Publ'ns, 499 U.S. at 348). The determination thus requires the Court to “dissect[] the copyrighted work and separat[e] its original expressive elements from its unprotected content.” Coquico, Inc., 562 F.3d at 68.

Another example

Here is another case from the UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA that discusses proof of "access" required in copyright infringement cases.

JOHN EVANS, PLAINTIFF, V. NBCUNIVERSAL MEDIA, LLC ET AL., DEFENDANTS. CASE NO.: CV 21-0984-CBM-PD(X) 

In this case the court discussed:

"Defendants also contend the Complaint fails to allege sufficient facts regarding access to state a copyright infringement claim. “To prove access, a plaintiff must show a reasonable possibility, not merely a bare possibility, that an alleged infringer had the chance to view the protected work.” Art Attacks Ink, LLC v. MGA Ent. Inc., 581 F.3d 1138, 1143 (9th Cir. 2009). “Where there is no direct evidence of access, circumstantial evidence can be used to prove access either by (1) establishing a chain of events linking the plaintiff's work and the defendant's access, or (2) showing that the plaintiff's work has been widely disseminated.” Loomis v. Cornish, 836 F.3d 991, 995 (9th Cir. 2016). Here, the Complaint alleges Defendant NBC Universal Media, LLC acquired DreamWorks Animation in 2016, and alleges Defendants NBC Universal Media, Universal Pictures, and DreamWorks Animation are divisions of and wholly owned subsidiaries of Defendant Universal City Studios LLC. (Compl. ¶¶ 5, 9, 26-28.) The Complaint alleges “on information and belief” that Defendant Snider was the Co-Chairman of Universal Pictures from 1999 to 2006, and “then became the Co-Chairman/CEO of DreamWorks from 2006 to 2014,” and “DreamWorks, in 2007, released the infringing animated film BEE Movie.” (Id. ¶ 7.)

While Plaintiff alleges Snider received a copy of Plaintiff's screenplay in 1999 and that Snider was Co-Chairman of Defendant Universal Pictures at that time (see Compl. ¶ 22), the Complaint alleges Snider and DreamWorks8 released the infringing Bee Movie film in 2007 (id. ¶¶ 7, 25). Plaintiff does not allege Defendants NBC Universal Media, Universal Pictures, or Universal City Studios worked on or released the infringing film. Plaintiff's theory of liability as to these entity defendants appears to be that DreamWorks Animation developed and released the infringing film in 2007, and because NBC Universal later acquired DreamWorks Animation in 2016 (9 years after the allegedly infringing film was released), then NBC Universal and Defendant Universal Pictures dba Universal City Studios (which owns NBC Universal) are liable for infringement based on DreamWorks Animation's “Bee Movie” film released in 2007. However, Snider's mere receipt of Plaintiff's screenplay fails to establish any nexus between these entity defendants (NBC Universal Media, Universal Pictures, and Universal City Studios) and DreamWorks Animation in connection with the allegedly infringing film and the Complaint does not allege any facts demonstrating that these entity defendants actually received Plaintiff's screenplay or worked on the infringing film. See Loomis, 836 F.3d at 995-96 (noting a plaintiff “cannot create a triable issue of access merely by showing ‘bare corporate receipt' of her work by an individual who shares a common employer with the alleged copier”); id. at 997 (rejecting argument that there was a triable issue of fact that the defendant had access where nothing in the record demonstrated the responsibilities of the defendants with respect to the film or that they worked together on the film, and concluding that nothing in the record demonstrated a nexus between the defendants and the songwriters other than plaintiff's “own speculation”).9 As to Defendant Jerry Seinfeld, the Complaint alleges “on information and belief” that he is “credited as the main actor and writer who worked in conjunction with DreamWorks to develop the Infringing Film” (Compl. ¶ 8) but does not allege facts regarding any nexus between Defendant Seinfeld and Snider or that Seinfeld received Plaintiff's screenplay. See Loomis, 836 F.3d at 995-97.

As to Defendant Snider, Plaintiff sufficiently alleges access by alleging Plaintiff provided her with a copy of the screenplay and received a rejection letter from Snider. (See Compl. ¶¶ 22, 23.) Therefore, the Court finds Plaintiff fails to plead access as to Defendants NBC Universal, Universal Pictures dba Universal City Studios, and Jerry Seinfeld, but sufficiently pleads access with respect to Defendant Snider. 

Proof of Access - the Banana duct taped to wall case

In a case dealing with dueling bananas taped to a wall with duct tape discuss the access requirement:

“Access requires proof of a reasonable opportunity to view the work in question.” Corwin v. Walt Disney, Co., 475 F.3d 1239, 1241, (11th Cir. 2007) (quoting Herzog v. Castle Rock Entmt., 193 F.3d 1239, 1249 (11th Cir. 1999). However, “reasonable opportunity does not encompass any bare possibility in the sense that anything is possible.” Herzog, 193 F.3d at 1249 (citing 4 Nimmer on Copyright Sec. 1302[A] at 13-19). Thus, “[a]ccess may not be inferred through mere speculation or conjecture.” Id. at 1250; see also Watt v. Butler, 457 F. App'x 856, 859–60 (11th Cir. 2012) (“[t]o establish access, a plaintiff must have more than mere speculation and conjecture. There must be a reasonable possibility that the defendant came across plaintiff's work”)

Similarly, in Watt v. Butler, 457 F. App'x 856 (11th Cir. 2012), plaintiff sued defendants for infringement of a song titled “Come Up”. To show access, plaintiff proffered evidence that plaintiff distributed 12,000 to 15,000 compact discs featuring the song throughout the Southeastern United States, where defendants were from. Plaintiff also showed that the song was performed at least 50 times throughout Atlanta and that a music video featuring the song was broadcast on television. In upholding summary judgment dismissing the claim, the Eleventh Circuit held that the chance that defendants “came across ‘Come Up'” from these facts “is exceedingly slim” and that the assumption of access “is too conjectural and speculative to sustain a genuine dispute” where “[t]here is no evidence that ‘Come Up' ever caught on in popularity” or “became a commercial success.” Id. at 859–60; see also Burgin v. Lahaye, 399 F. App'x 464 (11th Cir. 2010) (summary judgment upheld where proof of access was speculative, and plaintiff failed to rebut defendant's proof of independent creation); Calhoun v. Lillenas Publishing, 298 F.3d 1228, 1233 (11th Cir. 2002) (summary judgment upheld, finding no access where plaintiff's song did not receive widespread publicity, plaintiff received de minimus amount for performing rights and publishing royalties and there were no sales of the album on which the song appeared).

In another case

“Proof of access requires an opportunity to view or to copy plaintiff's work.” Loomis v. Cornish, 836 F.3d 991, 995 (9th Cir. 2016). To establish access, Ambrosetti must show “a reasonable possibility, not merely a bare possibility, that an alleged infringer had the chance to view the protected work.” Art Attacks Ink, LLC v. MGA Ent. Inc., 581 F.3d 1138, 1143 (9th Cir. 2009).

When the evidence access is circumstantial, a plaintiff may prove access by: (1) establishing a chain of events linking “Emmanuel” and defendants' access to that work, or (2) showing that “Emmanuel” was widely disseminated. Loomis, 836 F.3d at 995.

Ambrosetti also argues that he does not need to establish a genuine issue of material fact on access because there is a “striking similarity” between the works allowing for an inference of copying. Unicolors, Inc. v. Urban Outfitters, Inc., 853 F.3d 980, 985 (9th Cir. 2017) (“If there is no evidence of access, a ‘striking similarity' between the works may allow an inference of copying.”); Briggs, 70 F. Supp. 3d at 1167 (“Striking similarity is a high bar.”); Seals-McClellan v. Dreamworks, Inc., 120 F. App'x 3, 4 (9th Cir. 2004) (“To show a striking similarity between works, a plaintiff must produce evidence that the accused work could not possibly have been the result of independent creation.”) Because “Emmanuel” and “Christ Be Our Light” are not substantially similar, as demonstrated by Ambrosetti's inability to satisfy the extrinsic test, that argument is rejected.

CONTACT A COPYRIGHT LAWYER

As this case illustrates, it is important to have your proof all lined up (or at least viable allegations) of copyright infringement for claims that may involve software, photographs, fashion/fabric, jewelry, dancing (choreography), music, film, video, news clips, architectural plans or other copyrighted content.  If you do, you may lose your right to sue for money damages. 

Call us at (877) 276-5084 or fill out the contact form  to discuss your case.  We handle copyright infringement cases for Plaintiff and Defendants, as well as "contingency fee" photo, movie, book, jewelry, fashion, music, and software recovery programs in select cases.