- COPYRIGHT PREVENTS UNAUTHORIZED TAKING OF THE
PLAINTIFF’S WORK: INDEPENDENT CREATION IS NOT
INFRINGEMENT
- Striking similarities between the plaintiff’s and the defendant’s
works may, in themselves, be evidence of copying
A plaintiff will often not have direct evidence that the defendant copied his work.
Where the defendant denies copying, the plaintiff may prove his case by
circumstantial evidence. Proof that:(a) the two works are similar,(b) the plaintiff’s work was created first, and(c) the defendant had access to the plaintiff’s work, of which he must
have availed himself, is good evidence that the defendant copied.EXAMPLE 1:The plaintiff manufactured small stuffed animals called “Beanie Babies”,
including a pig called “Squealer” and a cow called “Daisy”, It obtained U.S.
copyright registrations for them as “soft sculptures”. The toys became very
popular. Three years later, the defendant marketed its own line of bean-bag
stuffed animals, including “Preston the Pig” and “Louie the Cow”, which were
virtually identical to “Squealer” and “Daisy”.The first instance court granted the plaintiff a pretrial injunction to prevent these
two pig and cow toys being marketed. The defendant appealed against the
injunction on “Preston the Pig”, denying infringement. The appeal court
dismissed the appeal.Ty, Inc. v. GMA Accessories, Inc., 132 F.3d 1167 (U.S.: Court of Appeals,
7 thCir. 1997)CHIEF JUDGE POSNER for the Court:The Copyright Act forbids only copying; if independent creation results in an identical work, the
creator of that work is free to sell it. ... But identity can be powerful evidence of copying. ... The
more a work is both like an already copyrighted work and – for this is equally important – unlike
anything that is in the public domain, the less likely it is to be an independent creation.
...[C]ircumstantial evidence – evidence merely probabilistic, rather than certain – can confer
sufficient confidence on an inference, here of copying, to warrant a legal finding.The issue of copying can be broken down into two sub-issues. The first is whether the alleged
copier had access to the work that he is claimed to have copied; the second is whether, if so, he
used his access to copy. ...Obviously, access does not entail copying. An eyewitness might have seen the defendant buy the
copyrighted work; this would be proof of access, but not of copying. But copying entails access.
If, therefore, two works are so similar as to make it highly probable that the later one is a copy
of the earlier one, the issue of access need not be addressed separately, since if the later work
was a copy its creator must have had access to the original. ...136