Copyright infringement is an elusive concept for some. The matter is complicated further by some enduring popular myths about what steps can be taken to avoid infringement.
I should point out that my intent here is to discuss “good old-fashioned” copyright infringement – there are exemptions and “safe harbors” against infringement created by things like the Digital Millennium Copyright Act that are beyond the scope of this discussion. Watch this space for a discussion of the DMCA at some point in the future.
What Rights Come from Copyright?
Before we can discuss what constitutes copyright infringement, it’s probably a good idea to lay out what specifically are the rights that are granted by the U.S. copyright laws. Stated briefly, U.S. copyright law provides a copyright owner with a bundle of rights in a work: he/she has the exclusive right to reproduce, distribute, perform, display, or license his or her work, and to authorize others to do any or all of these things. The copyright owner also has the exclusive right to create or authorize the creation of derivatives of that work.
So, since the copyright owner has the exclusive right to do all of those things (or to permit others to do them), infringement can happen when someone does any of them without the copyright owner’s permission. From a practical standpoint, however, the majority of copyright infringement suits involve reproduction (as in copying a work) and/or distributing (as in unauthorized copies of the work).
Substantial Similarity + Access = Copyright Infringement
Courts find copyright infringement when an accused work is “substantially similar” to a preexisting work, as a result of copying by an infringer. Often it is difficult for a plaintiff to prove actual copying, since there often are no witnesses to the actual act of copying. In those cases, in order to show copying the plaintiff must be able to demonstrate that the accused party had “access” to the earlier work – in other words, an opportunity to see, hear or otherwise experience the infringed work.
So a finding of copyright infringement requires both of these elements: substantial similarity and access/copying. It stands to reason that mere access, without any substantial similarity, is not infringement. After all, you certainly are exposed to many copyrighted works every day, and you probably create potentially copyrightable works of your own every day – provided none of “yours” are substantially similar to the any of “theirs,” there is no infringement. They’re just your own works.
Likewise, the defendant’s access to the prior work is a critical element, and without it there will be no infringement. This means that (at least theoretically) it is possible for two people to create identical works without infringement. For example, two photographers could take identical photographs and, if the second photographer created the work solely from his own artistic sense and had never seen the first photographer’s image, there would be no copyright infringement despite the substantial similarity of the works.
There are times when “substantial similarity” is not an issue. Think, for example, of a case involving the reproduction of a digital image or a recording in digital format. A digital copy is about as identical as something can get, so in those cases the only real issue is whether the defendant had access to the original work so that copying could occur.
Perhaps a more familiar example would be two songwriters who have written the same melody. Some may remember that a court found ex-Beatle George Harrison had infringed the copyright in the song “He’s So Fine” with his song “My Sweet Lord.” The melodies in the two songs are indeed substantially similar, and the court found access based on the fact that that “He’s So Fine” was a popular hit in Britain in 1963, a time when George Harrison was quite active in the music business (in fact, “He’s So Fine” was number 12 on the English charts at a time when a Beatles song was at number 1.) So, reasoned the court, “Harrison was aware of ‘He’s So Fine.’”
Don’t Buy Into the “Some Little Change” Myth
One of the most common and enduring popular misunderstandings about copyright infringement goes along these lines: “As long as I make some little change in the work, I can avoid copyright infringement.” Some versions of the myth even apply numeric criteria to the formula: “As long as I don’t use more than X% of the original work, I’m fine.” The numbers vary according to the version.
These beliefs about how one can avoid committing copyright infringement are completely incorrect and probably result from a misunderstanding of the “substantially similar” requirement. The courts have developed a number of tests for substantial similarity, but none of them are as simplistic as “Did the defendant make some little change in the original work?” or “Did the defendant use more than X% of the plaintiff’s work?”
In fact, in both of those versions of what we’ll call the “some little change test,” the defendant started with a work owned by another party and sought to create new work free of infringement risk by adding some elements of his/her own creativity. What the defendant actually has done is to create an unauthorized derivative work – which is in itself another form of copyright infringement.