Copyright Infringement – Access

How important is access to a particular intellectual property in copyright infringement claims?

This question comes up often with producers who are very careful to make sure that Submission Claims are handled properly.  However, many writers want to submit as many places as possible and see what sticks.  Remember that ideas cannot be stolen, only tangible work can.

In order to file a copyright claim, someone must

  1. Prove that they “own” the original copyright creation and
  2. Prove that someone else acting without authority had access to steal the script.

Thus in good business situations, you have a Submission Form.

This can be a volatile situation to the success of a project or the launch of a project.  The major companies all have submission forms, many of which will require that you do not approach anyone else during the time that you are submitted.  Several reasons exist for this.  First they do not want to be obligated to material that is unknown.  The second reason is basically that they do not want their time wasted while you are running around submitting to others.

What happens when a script has been submitted without a contract or a producer has read someone else’s material?

In court in order to show that another had “access” you must prove the following,

  1. That another person had access and,
  2. That the person’s work bears “probative” or “substantive” similarity to yours.

The court defines “access” as seeing, hearing or reasonable opportunity to see, hear or copy.

For writers, this is good and bad.  If a writer can prove that they have the copyright by US Library of Congress and the producer has read the script or had access through another (which is a weaker claim) then the producer is going to have to do some defending.  Generally, to finance a film and secure distribution the producer will have to prove that no one else, worldwide, has claim to the project.

Understand the Fair Use Doctrine if you are a writer, musician or filmmaker!

How do you prove “similar” or “strikingly similar” in court?  Use the Ordinary Observer test. The courts use the senses of an “ordinary observer” meaning any Joe Schmo watching the film and test similarities lie, characters, plot, back story, dialogue, setting, order of scenes and sequence.

The court may also look to see how long you have let this infringement go on without making a proper claim.

The film Effie starring Orlando Bloom is being challenged by a playwright who claims that the copyright is being infringed from the original play called The Countess.  The producers have gone to a New York federal court to get a declaration that Emma Thompson’s script Effie is not an infringement.

Even if the story is true or public domain a copyright will protect the claim of expression.  If the copyright holder wants to make a claim or declaration of copyright ownership and potential of infringement it is perfectly acceptable.    Screenwriters not that any registration other than the US Library of Congress is not official and is generally a way for the registering organization to make money.  A good entertainment litigator will have this thrown out as evidence since the organizations have no authority.

There are different types of copyrights to cover the anticipation of a legal challenge.  Should a producer be heading toward production with money and time spent and believe they can be challenged there is another copyright option.