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- Path: sparky!uunet!zaphod.mps.ohio-state.edu!malgudi.oar.net!caen!umeecs!umn.edu!email!sps
- From: sps@email.sp.unisys.com (Steven P. Skabrat)
- Newsgroups: misc.int-property
- Subject: Re: Copyright and Derivative Works
- Summary: re: proof for copyright infringement
- Message-ID: <6041@email.sp.unisys.com>
- Date: 18 Aug 92 16:51:35 GMT
- References: <Bt375A.By0@newcastle.ac.uk> <16q33kINNmmj@early-bird.think.com>
- Organization: UNISYS - Eagan, MN
- Lines: 30
-
- In article <16q33kINNmmj@early-bird.think.com>, barmar@think.com (Barry Margolin) writes:
- > In the real world, people are found guilty of copyright infringement on
- > much less ground than you're worrying about. There have been a number of
- > recent cases where movie and music creators have been found guilty based on
- > the fact that they could have read or heard the original version and the
- > purported copy bears a resemblance to it.
-
- The proof needed to show infringment is usually stronger than "resemblance".
- The commonly used test consists of two parts:
-
- 1. plaintiff must prove defendent had access to the original work.
- This doesn't necessarily mean proving that defendent had the work in
- his hands, but that the work was widely available. If actual access
- cannot be shown, availability will suffice.
-
- 2. plaintiff must show similarity between the original work and the
- defendent's work. If no actual access was shown in step 1, then the
- plaintiff must show "substantial similarity" between the works.
-
- In the real world, it's usually difficult to prove actual access (at
- least between unrelated parties). But access to a widely distributed
- work such as a pop song can easily be inferred. What substantial
- similarity is differs on the facts of each case.
-
- Your mileage may vary.....
-
-
- Steven Skabrat Class of '93, William Mitchell
- Paramax Systems Corporation College of Law, St. Paul, MN
- Eagan, MN
-