As a general rule, 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 other type of infringement, such as a musical work. Many elements of a literary work may be repeated from one work to the next and may be common to numerous works. Courts have struggled with distinguishing between "common elements" and those unique or original to an author. This is due in part to the fact that courts must 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?

Basic literary elements are fair game between authors, or those constituting mere ideas, are 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 usually subject to copyright protection. However, it may be more than adequately protected under common law theories of:

  • Unfair competition
  • Misappropriation
  • Trademark law

Should I Consult a Lawyer?

The deadlines and regulations for copyright registration are detailed and strict. An intellectual property attorney can help you meet all the deadlines and fulfill all the requirements. 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 strengths of your case.