Typically, two elements must be present:

  • 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

How Can I Prove Access?

Proof of direct copying is rare. Proving that someone had access to a work requires the owner to possess a valid copyright, someone else had access to the work, and that there is substantial similarity between the work and the alleged infringer’s work. One only needs to show a reasonable possibility that the infringer had access.

How Do I Prove If A Work is Substantially Similar to Mine?

It may sounds straight forward, but there are two parts to such an analysis:

  • Extrinsic – With the use of expert testimony, courts will review the similarity between the ideas
  • Intrinsic – Courts will review the similarity between the two expressions of the idea

Aren’t Similarities Expected or Inevitable?

Yes. Because there are only a limited number of musical elements. For example, the seven notes of the traditional western scale (“do, re, mi, fa, so, la, ti”) plus the five sharps or flats means certain similarities between musical works are expected and inevitable. Thus, the issue is to decide at what point the inevitable repetitions become impermissible takings. 

Can You Accidentally Infringe?

Infringement need not be intentional. There is the concept of innocent infringement. It is possible that an author might create a work that is unconsciously based on a prior work and therefore infringes the original copyright owner’s exclusive right to prepare derivative works. However, this is not a defense.  Additionally, there is the doctrine of vicarious or related infringement. A person who profits from an infringing performance, for instance, and who somehow supervises or has the right to control or supervise the performance, is just as liable as the actual performer.

Should I Consult a Lawyer?

The deadlines and regulations for copyright registration are detailed and strict. An intellectual property attorney can determine if you have a case and 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 core of your case.