You put a lot of hard work into your artistic endeavors. You’ve probably put a lot of effort into how you want to express yourself and present a message, while at the same time being as uniquely creative as possible. While copyright protection is automatically endowed upon your work as soon as it is created, registering your copyright can give you some additional protection. To start, a violation of a registered copyright entitles you to statutory damages that may be greater than the actual damages you have suffered, and registration shifts the burden to the alleged infringing party to show how their work doesn’t infringe upon yours.
Yet, while copyright registration may deter some people from imitating your work, the fact of the matter is that your copyright is only as strong as your ability and willingness to enforce it. This means that it is in your best interests to keep your eyes and ears open for works that merely copy yours or that are so similar so as to be largely taken from your work.
The latter group, those that are extremely similar to yours, can present some major legal issues on your end. After all, you may see it as someone ripping off your work, but the creator of that work may see it as merely coincidental or inspired by your work. If it’s not an exact duplicate, then where does the line fall as far as infringement and mere similarity?
The answer lies in the courts’ interpretation of “substantial similarity.” Courts have taken a couple of different approaches when addressing this issue. At its most basic level, though, the courts use a type of ordinary observer or ordinary listener test. Here, a judge or jury will analyze the two works from a layperson’s point of view, asking themselves whether the second work illegally appropriated the first work’s protectable expression. There should be an analysis into the overall look and feel of the two works to determine how much similarity there really is.
There are a couple of other legal aspects that have to be considered in these matters, too. For example, before infringement can be found, it is usually important to find that the defendant had access to the first work. In today’s digital world, this has become much easier to prove. Second, a plaintiff in these cases has to prove that there is “substantial” similarity. Therefore, a three-second part of your seven-minute song likely won’t be found to be substantial misappropriation. You might also want to consider the distinctiveness of the misappropriated portion of your work, too. A misappropriated section of a song that is easily recognizable may be considered much more significant than another portion of the song, even if it’s shorter.
Proving substantial similarity isn’t as easy as it may seem at first blush. Oftentimes experts are utilized to help judges and juries understand the underlying art form and the likelihood of accident similarity as well as, exactly, how similar the works in question are. But when relying on the overall look and feel of two similar works, you’ll need to be persuasive in you approach to your case, as well as persuasive in your arguments to the jury. This means that you’ll need to diligently do your homework in this area so that you obtain a firm understanding of the law, the test that is applicable to your case, the burden of proof, and how best to present the evidence in a light that is favorable to your position.
Don’t let the thought of enforcing your copyright overwhelm you, though. You can seek out assistance in these matters to better ensure that your works are protected and that you are compensated for any misappropriation. Therefore, if you think that your creative work has been infringed upon by another, or you simply question the similarity of another work, then you might want to discuss the matter with an experienced intellectual property attorney.