What is copyright infringement and how do the courts determine when infringement has taken place?
Copyright infringement occurs when one of a copyright owner’s exclusive rights is violated. A copyright is violated when someone copies, distributes, performs or displays all or part of a copyright work without the permission of the copyright owner. For instance, a copyright in a musical work may be infringed through the sale of “pirate” or bootleg recordings, by the use of digital “samples” without permission, or by the unpermissive use of a musical work in a video or motion picture. To establish copyright infringement in a court of law, a copyright owner must establish proof copyright ownership and proof of copying. Proof of copying may be established either by direct evidence of copying (i.e., an admission) or by indirect evidence showing 1) access to the original work; and 2) “substantial similarity” between the original and allegedly infringing work.
Courts will not find copyright infringement if two people independently come up with the same or a “substantially similar” work. Also, the less original a copyrighted work is, the less protection it may be entitled to under copyright law. If two works are strikingly similar, some courts may even infer that a defendant had access to the copyrighted work. Whether a work infringes another usually turns on the issue of substantial similarity. In the case of music, courts have ruled that infringement may occur where the “whole meritorious part of the song” is incorporated into another song, without any substantial alteration. continue