How To Prove Copyright Infringement
Courts usually require a copyright owner to prove that she owned the copyrighted work, and the defendant violated one of the exclusive rights of the copyright owner. In the case of the reproduction right, since there is seldom direct evidence of the offending act, a copyright owner may prove infringement through circumstantial evidence establishing that: (1) the defendant had access to the original work, and (2) the two works are substantially similar.
It is not necessary that the entire original work be copied for an infringement of the reproduction right to occur, nor that the copying be literal. All that is necessary is that the copying be substantial and material and that protected expression – not just ideas – were copied. Likewise, the similarity between the two works must be similarity of protected elements (the expression), not unprotected elements (the facts, ideas, etc.). The portion taken by the alleged infringer must also be more than a trivial amount to qualify as infringing.
Infringement can be found not only for direct participation in infringing activity (as described above) but also for those that facilitate the infringement under theories of secondary liability.
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