Copyright – Copyright Infringement – How Much Similarity is Required For "substantial Similarity"?
With the worldwide adoption of the internet, copyright infringement has become one of the most common offenses in the media industry. Copyright laws are put in place to protect artistic and intellectual property. The laws are very specific and cover all types of print materials. Forms, legal forms, real estate forms, agreements, contracts all manner of legal documents are protected by copyright laws. Books, novels, poems, songs, articles all protected by copyright laws.
Unfortunately, there is no definitive answer to this question. Instead, one must look to case law precedent to establish how much is too much. That being said, when alleging copyright infringement, the copyright holder must show that what was indeed taken and incorporated into the allegedly infringing work was copyright protectable. Once this is established, it is up to the plaintiff to show that the audience for the work will recognize "substantial similarities" between the two works. Although there is no set percentage, for example, to determine whether substantial similarity exists, two commonly recognized methods are available to assist in the misappropriation portion of a copyright infringement analysis.
Not to long ago there was a file sharing site that was in the news everyday. This file sharing site provided an arena where music could be shared amongst users. Basically a user would become a member by filling out a short membership form agree to the terms of service and would have immediate access to this website. The member would than be able to down load music that other members had uploaded to the site.
Today, courts will employ each of the above methods, and at times both methods, to aid in the misappropriation analysis. Given the factual nature of copyright law, it is not out of the question for one method to favor a copyright holder while the other method favors the alleged infringer. Therefore, it is worthwhile to, at the outset of any intended action for copyright infringement, analyze the likelihood of success under both methods. This will not only enable the copyright holder to identify the strengths and weaknesses of the particular case, but it will also allow the copyright holder to make a decision whether or not it is worthwhile pursuing a copyright infringement lawsuit. In the alternative, cease and desist letters, negotiation, for an amicable resolution, or other means short of litigation, such as copyright licensing, may be a possibility worth exploring.
Therefore, while ownership of a valid copyright and actual copying are two factors that also require particular analysis, oftentimes the misappropriation element is the determinative factor in a copyright infringement matter. Copyright holders are well-served to fully analyze the extent of misappropriation just as defendants to a copyright infringement lawsuit should constantly be looking to identify elements that negate a finding of substantial similarity
Resource Author Francisco Rodriguez H.
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