November-December 2014 … The Global Online Magazine of Arts, Information & Entertainment … Volume 10, Number 6
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Feeding the Starving Artist/Law

Wait, Wasn’t That

My Substantially Similar Idea?

 

by Mark Levy and Shaun R. Vavra

  

Enforcement of copyright rights is a sensitive subject. Copyright infringement is the act of violating a copyright holder’s exclusive rights granted by the federal Copyright Act, and is nothing short of theft. The Supreme Court recognizes copying as “that which comes so near the original as to give every person seeing it the idea created by the original.” The severity of the subject is indicated by the fact that an infringer could be fined from $200 (unintentional infringement) to $150,000 (willful infringement) per act of infringement, or even by a jail sentence.

Infringement is dependent on three components: the holder must have an active or enforceable (registered) copyright, the alleged violator must have access to the copyrighted material, and the duplication must be “substantially similar” to the copyrighted material. Copyright infringement relies heavily on these three prerequisites, with the absence of only one stultifying the infringement process.

As you would most likely assume, the presence of these characteristics is subject to perpetual argument. It is hence the responsibility of the civil or criminal court to organize this mess and to define what is indeed infringement. With this thought in mind, what exactly does the court deem copyright infringement, and what exactly constitutes substantial similarity? The answers to these questions vary vastly from court to court.

The federal Copyright Act establishes the grounds for copyright protection. As the initial creator of a work, you are granted the privilege of the first owner. For a copyright to be valid you must reduce your aforementioned work to a tangible medium like paper, canvas, clay, marble, CD, or DVD. In the United States, copyright attaches automatically upon conception of a work and registration is not necessary, although you should register your work in the U.S. Copyright Office if you wish to sue an infringer.

You can usually prove presence of the information or “access” easily. Presence of the information requires that the copyright infringer of your copyrighted material had access to the material before he copied it. Courts typically will revert to a question of public access to prove presence of the information. For instance, was your copyrighted material displayed on YouTube or at an art gallery, or was it stowed away in your basement? A court ruled in O’Keefe v. Ogilvy & Mather Worldwide, Inc. that although the copyrighted work, the tagline “My card. My work,” was posted on the Internet, the copyright holder failed to prove the defendant had reasonable opportunity to view the work. Therefore, the infringement claim was dismissed. From this you can see that an opportunity to view the work is not always the same as open display.

Substantial similarity is the standard used to determine the level of similarity between two materials. The first rule of substantial similarity is there are no rules. There is no quantitative method to decide whether a duplicate is substantially similar to your copyrighted material. This is arguably the grayest area of the criteria for infringement, and the topic on which most courts vary. Substantial similarity is relied on because you may find direct evidence of copying difficult or impossible to prove. Courts use the judgments of the ordinary lay observer to determine similarities.

There are two categories of substantial similarity: comprehensive and fragmented. Comprehensive similarities are non-literal and often implied, where fragmented similarities are literal, but minor segments. This is the traditional method of approaching an infringement claim. Has the duplicate taken so much of the copyrighted material in either of these categories to have wrongly appropriated something that belongs to the owner? Different courts have since adopted their own methods for determining similarities. The Ninth Circuit created a test called the Total-Concept-and-Feel Test. This test relies on a subjective view to determine whether the “concept and feel” of one work is similar to another. The Second Circuit Court of Appeals uses a test named the Abstraction-Filtration-Comparison Test. This test compares the elements of a work at increasing levels of abstraction, excluding the elements of that work that are not copyrightable. As you can surely predict, different methods will inevitably lead to a spectrum of infringement results.

A problem of substantial similarity arose in the production of the film, Batman Forever. It would make sense that a popular song requires permission before you use it in your video. In the Batman case though, the court was faced with the issue of visual elements. The opening scene sets the scenery, sweeping from street level up to the peak of a downtown building, where a hostage victim stands in peril. In these few seconds a glimpse of copyrighted artwork, primarily the tops of wrought iron sculptures, are captured. Does this scene violate the sculptor’s copyright? In the decision Leicester v. Warner Bros. the court ruled since the sculpture was part of the architectural work of the building it was exempt from copyright infringement. The court basically decided that, in this case, a private sculpture was somehow equivalent to public property.

On the other hand, a 1991 decision, Grand Upright Music, Ltd. v. Warner Bros. Records Inc., heard by the United States District Court for the Southern District of New York, changed the face of the music industry in a more conservative direction. The court ruled that the original copyright owner must preapprove any sampling of music. Sampling was held to be a direct infringement of a holder’s copyright. The court stated, “it is clear that the defendants knew that they were violating the plaintiff’s rights as well as the rights of others.”

By now you are probably thinking, Is there any way to avoid copyright infringement? Although the guidelines for infringement are vague, you can take precautions to avoid any infringement confrontation. The first and probably the most important guideline is: do not copy any material from the Internet or anywhere else for that matter. By default, all of this material is already copyrighted; copying would constitute clear-cut copyright infringement. This holds true for derivative works, too. If your video is derived from a copyrighted work, you won’t be able to use it without written permission from the copyright holder. So no, you can’t change “just a little bit” of the original work.

Secondly, stay innovative. Being original and creative will help ensure that you are not violating any copyright laws.

You should make note though, as always, there are some loopholes. If the source you are copying was created before 1922, you are safe from allegations of infringement. Also in the list of exceptions is music or sound effects that are royalty-free. Exceptions to copying have additionally been granted under the fair use doctrine. Fair use permits limited copying solely for the purposes of reporting, criticism, commentary, and teaching. Lastly, and probably the most straightforward approach is for you to ask the copyright holder for written permission to use his or her work.

As you have probably concluded, copyright infringement is sometimes hard to pin down. If not obvious, it is certainly a demon to be avoided. By following our few guidelines, you can help ensure an unobstructed path while creating art.