Dora writes a screenplay. She fears that individuals will copy her work and claim it for themselves. Can you explain to him the requirements to obtain the copyright on his work? Circumstantial evidence can help a plaintiff prove that the defendant copied his work. The plaintiff can prove a “substantial similarity” between the copyrighted work and the defendant`s work, as well as evidence that the defendant saw or had access to the copyrighted work prior to creating the work. This may help establish that the defendant actually used the copyrighted work. Without proof that the defendant had access to the work, the plaintiff must prove a “striking similarity” between the two works. In the fifth circle, the application of the “ordinary observer” test answers the question of whether two works are substantially similar. Cantrell, 85 F.Supp.2d to 683. Under the ordinary observer test, substantial similarity exists only if the applicant can prove that “the ordinary observer, if he does not want to recognize the differences, would be inclined to ignore them and regard their aesthetic appeal as the same.” Peter Pan Fabrics, Inc. v.

Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960) (J., Main). In order to “determine the relative importance of a part that appears to have been copied, a court must determine the relative importance of the copied part in relation to the entire [copyrighted] work.” Cantrell, 85 F.Supp.2d to 683. Therefore, “if the similar material contained in [the work of the alleged infringer] is not an essential part [of the copyrighted work], there is no substantial similarity and therefore no infringement.” The federal law contains two alternatives to the “commercial advantage” element that could also constitute criminal copyright infringement: This publication contains the text of 17 U.S.C. Title, including any amendments passed by Congress through December 27, 2020. It incorporates the Copyright Act 1976 and any subsequent amendments to the Copyright Act; the Semiconductor Chip Protection Act of 1984, as amended; and the Hull Design Protection Act, as amended. The Copyright Office is responsible for registering intellectual property claims under these three criteria. The plaintiff in a copyright infringement proceeding has the burden of proof for two elements: that he owns a copyright and that the defendant has infringed it. A copyright owner may seek an injunction to prohibit the defendant from unauthorized use of the copyrighted material and to obtain damages. An applicant alleging copyright infringement in a civil proceeding must prove two elements with predominant evidence. The Department of Justice can establish criminal copyright infringement by proving the same elements as well as two additional elements, all of which are beyond a reasonable doubt. A copyright infringement action requires a plaintiff to prove (1) ownership of a valid copyright and (2) actionable copying by the defendant of parts of the work that are original.

Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991); Positive Black Talk Inc. v. Cash Money Records, Inc., 394 F.3d 357, 367 (5th Cir.

2004); R. Ready Productions, Inc. v. Cantrell, 85 F.Supp.2d 672, 682 (Tex. S.D. 2000). Federal law grants the copyright owner the exclusive right to use copyrighted material for a variety of purposes, including displaying or performing the work, making and distributing copies of the work, and creating derivative works from the original. Using a copyrighted work without the owner`s permission is called copyright infringement.

If there are both protectable and non-protectable elements of a copyrighted work, Fifth Circuit courts apply the “more sophisticated ordinary observer test,” which requires the court to separate protectable and unprotectable material from the plaintiff`s work and apply the ordinary observer test only to protectable material. See Cantrell, 85 F.Supp.2d, p. 683. A trial court should not consider expert testimony or evidence when applying the ordinary observer test to determine whether two works are substantially similar. See Peel, 238 F.3d to 398. On the contrary, the Fifth Judicial District specified that the hypothetical ordinary observer must be able to detect the alleged violation “without assistance, suggestion or critical analysis from others,” stating that “the public`s reaction to the [allegedly offended] case should be spontaneous and immediate.” This applies in particular where the works in question are popular musical works intended for the general public, as opposed to computer programs or highly technical or complex mechanical devices. This edition adds copyright laws enacted since the last printed edition of the circular in June 2020: provisions of the Consolidated Appropriations Act, 2021, which added Section 2319C to 18 U.S.C. on criminal penalties for copyright infringement, and a new Chapter 15 to Title 17, the Copyright Alternative in Small-Claims Enforcement (CASE) Act 2020. This law was signed in December 2020.

Many courts have erroneously used the term “substantial similarity” to describe both “the similarity required to prove the factual copy [i.e., what the Fifth Circuit calls `probative similarity`] and the similarity required to prove that the copy is legally enforceable [i.e., what the Fifth Circuit calls `substantial similarity`].” Positive Black Talk, 394-368 n. 7. But, as the Fifth Circle explained in Bridgmon, “`nutritional similarity` and `substantial similarity` are analytically different investigations.” Bridgmon, 325 F.3d to 576. The probative similarity study . is not the same as the question of substantial similarity, which determines whether, once established, de facto reproduction is legally enforceable. Positive black talk, 394 F.3d at 370; Bridgmon, 325 F.3d to 577 n. 7. In other words, there is conclusive similarity if there are “similarities between the two works (substantial or not) which, in the normal course of events, should not appear independently in the two works and which could therefore indicate that the defendant copied part of the plaintiff`s work”. Positive Black Talk, 394 F.3d to 370 (in parentheses in original).