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Spontaneous Generation: A Key Limit of Copyright Protection

Of the three branches of intellectual property protection, patents, trademarks, and copyrights, copyright law is often the one that touches people’s everyday lives most directly. Few people are inventors or business owners, but many people consume media like TV and music on a daily basis, putting them at risk at violating copyright law. Even beyond that, many people themselves create some form of art, even in an amateur capacity, which gives rise to a copyright in the work. Consequently, people should be aware of one of the key limitations of copyright protection, that it does not protect against the spontaneous generation of the same idea; it only protects against copying.

Copyright Only Protects against Copying

It is important to note that the copyright statute is unique among the forms of intellectual property because it is the only one that requires evidence of copying in order to sue someone for infringement. Patents and trademarks protect an idea or a logo regardless of how a person comes upon it. For instance, if someone uses a logo that is confusingly similar to McDonald’s golden arches, it would not matter if they had never heard of McDonald’s before. The mere use of something that caused confusion would be grounds for a trademark lawsuit.

Copyright law is different since it does not protect a person from having works identical to theirs sold or used if there is no evidence of actual copying. For example, suppose someone who had been living on a deserted island for the past 50 years happened to write a set of songs that was identical to the Beatles’ White Album. There could be no copyright claim against that person since he could not have copied the songs, regardless of the fact that they are identical.

Proving Copying

The fact that copyright claims require copying to stand creates a new issue, as people must figure out a way to prove the copying of the work. In some instances, this can be done by the admission of the defendant, but those cases are rare. Another more common tactic is proactive behavior on the part of the copyright owner to detect copying. For example, there was a famous case about the copyright in a phone book. The phone book manufacturer had detected the copying by including false entries for nonexistent people and then checking the alleged infringer’s phone book for those entries.

However, the majority of cases do not involve admissions or proactive behavior, so courts have developed other tests. In those cases, the plaintiff must prove that the defendant had access to the plaintiff’s work that they allegedly copied, and there must be “probative similarities” between the two works. Additionally, there is some give and take between the two parts of the test. If a plaintiff can show that the allegedly similar work is “strikingly similar” to the original, then some courts will presume that the defendant must have had access to the original. Yet, even in those cases, the court will allow the defendant to defeat that presumption by affirmatively showing a lack of access.

Despite this limitation of copyright protection, copyright lawsuits can still be powerful tools for protecting artistic rights. If you are involved in a copyright dispute, contact a Florida copyright attorney at Pike & Lustig, LLP today.

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