Hello, this is patent attorney Yongduck Kim of IPLEX IP Law Firm.
This article considers how the relevant requirements are established in litigation and disputes, and how evidence should be collected and presented. It introduces provisions including 17 U.S.C. §§102, 106 and 501 and relevant cases to explain practical approaches to copyright protection.
US copyright law, 17 U.S.C. §101 et seq., protects works of authorship and governs infringement. A claim requires more than an assertion that two works look alike. This article examines ownership, access and substantial similarity as central issues in the infringement analysis.
Registration is not needed for copyright protection to arise, but timely registration matters for remedies such as statutory damages and attorney’s fees under 17 U.S.C. §412, as well as other evidentiary and procedural benefits.
Three central issues in copyright infringement analysis
The analysis commonly addresses valid ownership, evidence of copying and substantial similarity of protected expression.
1) Ownership of a valid copyright
In order to claim an infringement, it is important to first identify whether the work is actually ‘valid’. The person who created the work is the author in principle, but sometimes the rights may be attributed to a third party, such as through a “copyright transfer agreement” or “Work for Hire.”
For example, the author may have copyright for the text of a book written by a writer, but the copyright of the painting (artwork) may be passed on to the author through a separate agreement with the illustrator.
2) Access to original works
Striking similarity may, in appropriate circumstances, support an inference of copying without direct proof of access. Arnstein v. Porter, 154 F.2d 464 (2d Cir. 1946), discusses this evidentiary approach.
3) Substantial similarity
Courts use different tests for substantial similarity, including the ordinary-observer approach where applicable. The analysis concerns protected expression rather than a general impression that the works share an idea.
These issues interact in the overall analysis. The evidence and applicable judicial test determine whether actionable copying has been established.
Category | Content |
(Ownership of a valid copyright) | Copyright generally arises when an original work is created and fixed in a tangible medium, rather than upon registration. Originality requires independent creation and a minimum degree of creativity; fixation may take the form of writing, a recording or a digital file. Ideas alone and unfixed improvisations generally do not receive the same protection. See 17 U.S.C. §102(a); §302 addresses copyright duration. |
Access to original works | Access concerns whether the defendant had a reasonable opportunity to encounter the plaintiff's work. It may be shown through direct or circumstantial evidence.
On the other hand, the time and scope of publication of the work are also important. Sometimes the publication of the original work in a dispute is not clear and there is a rebuttal, and if you can prove it clearly, it is advantageous for accessibility claims. Then, depending on whether it is published only in a particular country or platform, or whether it has been sold globally, the approach judgment will vary. Where direct evidence is absent, unusually close similarities in original elements may support an inference of copying, depending on the applicable test and evidence. |
The Substantial Similarity | Substantial similarity concerns copying of protected expression, rather than a vague resemblance between two works. The copyright does not protect the “idea” itself, but rather the concrete form in which the idea is expressed (“idea-expression dichotomy”). For example, anyone can use the idea of a "star fairy tale", but if the part that personifies a star and gives it a "particular name" and a "particular narrative" is an original expression, that part should not be duplicated. Unprotected elements such as genres, historical facts and stock settings remain available to everyone. Original dialogue, plot development and other expressive details may receive protection. Anyone may use the idea of a beautiful star in the sky. Copying a work's original characters, dialogue or narrative expression, however, may infringe copyright. |
Additional considerations in copyright infringement lawsuits
Registration has distinct procedural and remedial roles. Under 17 U.S.C. §411(a), a civil infringement action concerning a US work generally requires registration or preregistration, subject to statutory exceptions and the refusal procedure. Section 412 separately limits statutory damages and attorney’s fees based on registration and infringement timing, including its three-month publication rule. These questions must be distinguished from when copyright first arises.
Preserve publication dates, sales records, screenshots, contracts and original-file metadata. Where appropriate, expert analysis can help distinguish protected expression from general ideas.
Working Guide: How to Prevent and Respond to Copyright Infringement
We encourage you to register with the U.S. Copyright Office as soon as possible. With copyright registration, the litigation strategy is much more advantageous in the event of a later dispute.
On the other hand, it is good to have evidence to submit in future copyright infringement cases that can objectively demonstrate the time and process of creation, such as the creation date, the collaborator's notes, the publishing contract, and the ISBN registration information.
Monitor relevant platforms for unauthorized copies. A properly supported DMCA notice may help remove infringing material, and a demand letter or federal action may be appropriate depending on the case. Timely registration affects eligibility for statutory damages and attorney's fees; registration is not required merely to send a DMCA notice.
Ownership and copying of protected expression are central to infringement. Access and similarity may provide evidence of copying. Registration, evidence preservation and suitable enforcement procedures can help protect the work.
Registration is not required for copyright to arise, but its timing is important for statutory damages, attorney's fees and, for U.S. works, the general prerequisite to bringing an infringement action.
The next article explains registration requirements for literary works. Contact IPLEX for assistance with copyright registration or disputes in Korea and overseas.
This article reflects the information available when it was published. Contact us to discuss your circumstances.