Copyright infringement

Anyone who, without the authorization of the copyright owner, exercises any of the exclusive rights of a copyright owner, as granted and limited by the Copyright Act, is an infringer of copyright. Thus, any activity that falls within the scope of the exclusive rights of the copyright owner is a copyright infringement and the infringer is liable, unless it is authorized by the copyright owner or is excused by a defense (such as fair use) or an exemption. For purposes of this discussion of infringement, the lack of such authorization, defense or exemption is generally presumed.

Copyright infringement is determined without regard to the intent or the state of mind of the infringer; "innocent" infringement is infringement nonetheless.

Moreover, although the exclusive rights refer to such rights with respect to "copies" (plural) of the work, there is no question that under the Act the making of even a single unauthorized copy may constitute an infringement. Courts generally use the term "copying" as shorthand for a violation of any of the exclusive rights of the copyright owner (not just the reproduction right). Courts usually require a copyright owner to prove ownership of the copyrighted work and "copying" by the defendant to prevail in an infringement action.

Since there is seldom direct evidence of copying (witnesses who actually saw the defendant copy the work, for instance), a copyright owner may prove copying through circumstantial evidence establishing that the defendant had access to the original work and that the two works are substantially similar. Other indications of copying, such as the existence of common errors, have also been accepted as evidence of infringement.

The copying of the copyrighted work must be copying of protected expression and not just ideas; likewise, the similarity between the two works must be similarity of protected elements (the expression), not unprotected elements (the facts, ideas, etc.). The portion taken must also be more than de minimis.

The similarity between the two works need not be literal (i.e., phrases, sentences or paragraphs need not be copied verbatim); substantial similarity may be found even if none of the words or brush strokes or musical notes are identical. Various tests have been developed to determine whether there has been sufficient non-literal copying to constitute substantial similarity between a copyrighted work and an allegedly infringing work.

Judge Learned Hand articulated the well-known "abstractions test," where the expression and the idea are, in essence, treated as ends of a continuum, with infringement found if the allegedly infringing work crosses the line delineating the two. Such a line, as Judge Hand recognized, is not fixed in stone; indeed, as he put it, its location must "inevitably be ad hoc . . . ."

The "pattern test” has also been suggested, where infringement is found if the "pattern" of the work is taken (in a play, for instance, the "sequence of events, and the development of the interplay of characters").

The "subtractive test” &mdash; which dissects the copyrighted work, disregards the noncopyrightable elements, and compares only the copyrightable elements of the copyrighted work to the allegedly infringing work &mdash; has been the traditional method for determining substantial similarity.

Following the 1970 Ninth Circuit decision in Roth Greeting Cards v. United Card Co., the "totality test” became popular for determining substantial similarity. The totality test compares works using a "total concept and feel" standard to determine whether they are substantially similar. Although chiefly used by the Ninth Circuit in the 1970s and 1980s, the test was used by other circuits as well.

The Ninth Circuit further defined an "extrinsic/intrinsic test” in proof of substantial similarity in Sid & Marty Krofft Television Productions, Inc. v. McDonald's Corp. The intrinsic portion of the test measures whether an observer "would find the total concept and feel of the works" to be substantially similar. The extrinsic portion of the test, meanwhile, is an objective analysis of similarity based on "specific criteria that can be listed and analyzed." Thus, this test requires substantial similarity "not only of the general ideas but of the expressions of those ideas as well."

More recently, however, both the Ninth and Second Circuits have moved away from the totality test, particularly with respect to computer applications. In Data East USA, Inc. v. Epyx, Inc., the Ninth Circuit rediscovered "analytic dissection of similarities" in the substantial similarity determination of video games. Similarly, the Second Circuit, in Computer Associates International, Inc. v. Altai, Inc., fashioned an "abstraction-filtration-comparison test" for a computer program that combined Judge Learned Hand's "abstraction test” (to separate ideas from expression) and "filtration" reminiscent of traditional "subtraction" analysis in distinguishing protectible from non-protectible material.

In addition to the evolution of substantial similarity tests, there is disagreement as to the appropriate "audience" for determining substantial similarity. The "ordinary observer test" &mdash; alluded to in Arnstein v. Porter and followed in a number of Second Circuit decisions &mdash; considers the question of substantial similarity from the viewpoint of the "average lay observer." The Fourth Circuit, however, set forth a modified test in Dawson v. Hinshaw Music Inc., requiring the ordinary observer to be the "intended" audience for the particular work. Relying on decisions by both the Ninth and Seventh Circuits, the court in Dawson stated:


 * [i]f the lay public fairly represents the intended audience, the court should apply the lay observer formulation of the ordinary observer test. However, if the intended audience is more narrow in that it possesses specialized expertise, . . . the court's inquiry should focus on whether a member of the intended audience would find the two works to be substantially similar.

The challenge of this test, especially in more advanced technologies, is determining when, if ever, a work is not directed to an audience possessing specialized expertise, and at what point a work once intended for a specialized audience becomes accepted by the general public. The ability to manipulate works in digital form raises an issue with respect to infringement of the reproduction and derivative works rights. A copyrighted photograph, for instance, can be manipulated in the user's computer in such a way that the resulting work is not substantially similar to the copyrighted work (in fact, it may bear little or no resemblance to the copyrighted work upon which it was based). The initial input of the copyrighted work into the user's computer may be an infringement of the copyright owner's reproduction right, but the infringing (or noninfringing) nature of the resulting work is less clear.

Although courts traditionally rely on a "substantial similarity" test to determine infringement liability &mdash; including with regard to the derivative works right &mdash; neither the meaning of "derivative work" nor the statutory standard for infringement appears to require an infringing derivative work to be substantially similar.