Although each copyright infringement case will have some unique factors, there are some common elements for most cases. All copyright law is governed by Federal Law. Accordingly, all state law statutes creating rights in original works, such as books, sculpture, photographs, music are not pre-empted by Federal Law. Copyright law does not however supplement other Federal protection for securing comparable rights. For example, a design patent is still available to protect ornamental feature of a structure. Similarly, unique, non-functional features of a product, which are distinctive and identify/associate the creator of the product with the product, are also protectable under both State and Federal laws precluding unfair competition.
Copyright law can be summarized as an “anti-plagiarism” statute. It prohibits duplication of another’s original work; and, so-called “derivative works”. Notwithstanding, there are number of exemptions which permit “fair use” of copyrighted works – typically, non-profit copying, e.g. parody, commentary, objective comparison, etc.
The internet has created a number novel issues relative to copyright law – some of more notorious being the duplication and distribution of copyright music and performance. More recently, a relative new area of copyright has begun to emerge – the “indexing” of the copyrighted material from websites by search engines, (Google, Yahoo, and Microsoft), incident to the search engine creation of its data file. Typically, such indexing is performed by the search engine interrogating websites, and thereafter copying proprietary features of without authorization or attribution of the copied content to the copyright owner. This “indexing” process
A plaintiff has to prove ownership of a valid copyright in order to prevail in a case, for example. This isn’t the only burden of proof the plaintiff has, however. The plaintiff must also demonstrate that there is at least one instance of the defendant actionably copying of the elements belonging to the original work.
In order to demonstrate that the copyright ownership is valid, the plaintiff has to show that the work was independently created by him or her and that it has a basic minimal level of creativity. The plaintiff has to show that factual copying has happened with circumstantial or direct evidence. It’s very difficult to obtain proof of factual copying with direct evidence, however. More often than not, though, the case plaintiff has to rely primarily on circumstantial evidence. Map makers such as Rand McNaly protect their maps from unauthorized duplication by inclusion of deliberate errors (fictitious locations) in their maps. Thus, when their maps are duplicated without their permission, there is no doubt that the copy is based upon their original copyrighted work.
Proof of copying requires demonstrating that the defendant had access to the allegedly infringed piece of work, and that there are similarities between the two works. Access can be shown simply by demonstrating that there was a reasonable opportunity for the defendant to perceive the work prior to the creation of his or her own work.
Although the rules might appear relatively clear, it’s hard to know how the defendant in a case will work with his or her attorney to craft a response. Selecting a copyright infringement attorney who works largely in the field of intellectual property allows you to rely on their background and knowledge of the field in order to prepare a compelling story in court. This may require being prepared for the possible defense strategies involved in rebutting a claim of copyright infringement.