Any copyrightable element of a work can be subject to copyright infringement. Proving copyright infringement in court can be difficult. In order to prove copyright infringement, the plaintiff must:

1. Establish the ownership of legitimate copyright.
2. That the infringing party had access to the copyrighted work.
3. That the infringing party had the opportunity to steal that work.
4. Prove that protected elements of the original work have been copied.

This second task can be difficult due to the subjective nature of interpreting particular elements of a creative work. This is where substantial similarity comes into play. Ownership of a copyright is typically easy to prove. This is given of course that the creator has taken the proper measures to establish that copyright in some formalized way. As covered in the first question, a copyright can be properly established through multiple avenues. There are online resources for uploading and archiving works that can help prove ownership of a copyright. This is, of course, less reliable than registering with an official organization such as the WGA or Library of Congress. Registering with the WGA provides additional benefits that can help prove ownership of a copyright in court, but registering with the Library of Congress remains the most reliable. Given that a creator has registered with the Library of Congress, proving copyright ownership is trivial because such registration acts as prima facie proof itself.

Following the establishment of a copyright, most of the time in a copyright infringement trial is spent analyzing the supposed infringing work. This can range in difficulty depending on how blatant the stolen elements are. If the copying was not direct, then a plaintiff must prove that the two works are “substantially similar.” This also involves proving that the party accused of infringement had access to the original work. Proving that the party accused of infringement had access involves the proof of “reasonable opportunity” as opposed to a minimum possibility.

Proving access is trivial for widely disseminated works, but can be more difficult otherwise. For works that have not been widely disseminated the plaintiff must typically create as direct a link as possible through some series of events that would have given the defendant access.

After establishing both a copyright and the access of the defendant to that copyrighted work, the plaintiff must prove substantial similarity. Proving substantial similarity is inversely tied to the work’s accessibility. The more access that the defendant had, the easier it is to prove substantial similarity. In general though, proving substantial similarity involves a two-part test of similarity that tests extrinsic and intrinsic similarity.

The extrinsic portion of the test calls for the plaintiff to identify the specific aspects of the work which the plaintiff claims have been copied. This portion of the test is absent of interpretation and calls for the plaintiff to isolate specific elements of themes, moods, characters, etc. that have been copied. General tropes and plot elements do not qualify.

Proving the existence of these similarity requires substantial evidence and analysis of a work. The intrinsic portion of the test is the more subjective aspect of proving copyright infringement. The intrinsic portion is an analysis of whether an ordinary person’s interpretation of the two works leads them to believe they are substantially similar. This is the job of the jury.

If you believe that your work has been stolen and is being distributed online, you should first fill out and present a Digital Millennium Copyright Act (DMCA) Takedown Notice to the offending party. Most organizations wish to avoid legal action and matters can often be resolved at this stage. If this fails however you should immediately contact an attorney. This is often step one in legal action, but is not always appropriate. 

In recovering damages there are three primary types of damages that can be recovered:

1. Actual Damages
2. Infringer’s Profits
3. Statutory Damages

Actual damages are the amount of profit lost by the copyright owner directly due to the infringement claimed. Usually, expert testimony is offered to determine the actual damages suffered by the claimant, but even so, it is often difficult to determine exactly how much profit was lost by the claimant that can be directly traced to the infringement.

As a result, clients often do not recover actual damages. Infringer’s profits are recovered only in the case that those profits exceed the amount of provable actual damages. This is similarly difficult to precisely prove. As a result of the difficulty in accurately determining actual damages and infringer’s profits in many copyright cases, the Copyright Act provides for statutory damages.

Claimants may recover either actual damages and infringer’s profits or statutory damages. Statutory damages will not be awarded in addition to actual damages and/or infringer’s profits. Recovery of statutory damages requires that the plaintiff had registered their copyright with the United States Copyright Office prior to the infringement taking place.

Statutory damages as defined by 17 U.S.C. § 504(c) can be between $750.00 and $30,000.00 per infringement in the case that it is impossible to prove whether the infringement was willful or not. If on the other hand the infringement was proven to be willful then statutory damages can range up to $150,000.00 per infringement. The actual amount, in either case, depends on the severity of infringement as well as the financial status of the infringing party.

It is important to note that copyright claims are subject to a three-year statute of limitations in accordance with the decision in Petrella vs MGM, Inc. One must file a claim of copyright infringement within three years of the infringement taking place. Copyright law does, however, account for the “separate accrual” of infringements in accordance with the tolling and continuous violations doctrine. This means that each infringement has its own three-year statute of limitations.

This article contains general legal information for educational purposes only and does not constitute legal advice.