In the Case of a Literary Work, How is Infringement Proven?
Just like a musical work, two things must be shown:- Access ¿ When proof of access shows a similarity between time and space between defendant¿s contact with plaintiff¿s work and the creation of the alleged infringement
- Similarity ¿ Can be overcome with a public domain defense
However, there are many more difficulties to proving infringement of a literary work than a musical work. Many elements of a literary work or repeated from one work to the next and are common to numerous works. Courts have struggled with distinguishing between common elements and those original to an author. Courts must also distinguish between the idea of the author and the form of expression for the idea, also known as the idea-expression dichotomy.
What is the Idea-expression Dichotomy?
Those rather basic literary elements that essentially are fair game between authors are those constituting mere ideas, not protected by law. The greater detail that individual authors create is the expressions of those ideas, which are protected by law.
Is There Any Way to Determine when an Idea Becomes an Expression of the Idea?
In Nichols v. Universal Pictures Corp. (1930), Judge Learned Hand developed the ¿abstractions¿ test which identifies a range within which the development of characters and sequence lie. The Judge stated that ¿the less developed the characters, the less they can be copyrighted.¿
Is the Title of a Literary Work Open to an Infringement Claim?
The simple title of a literary property is not subject to copyright protection ¿ although it may be more than adequately protected under common law theories of unfair competition, misappropriation, or even trademark law.
Should I Consult a Lawyer about my Copyright Issue?
The deadlines and regulations for copyright registration are detailed and strict. An attorney can help you meet all the deadlines and fulfill all the requirements. A lawyer can also participate in on-going research to make certain no one else is using your copyright without your permission. Additionally, if you have an issue of copyright infringement, an attorney can guide you through the difficult and strict procedural requirements for litigation and bring out the core of your case. |
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