In order to prevail in a copyright infringement case, the plaintiff must show either direct evidence of copying, or “access to the plaintiff’s work” such that copying can be proved circumstantially.
This requires a showing of a “reasonable probability”, not merely a bare possibility, that the infringer had the chance to view the protected work. Without direct evidence, circumstantial evidence must show either by establishing a chain of events linking the plaintiff’s work and the defendant’s access, or a showing that the plaintiff’s work has been widely disseminated.
To state a claim for copyright infringement, a Plaintiff must allege: “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” [Feist Publ'ns, Inc. v. Rural Tele. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991)].
The second prong requires a plaintiff to allege that “the infringer had access to plaintiff’s copyrighted work and that the works at issue are substantially similar in their protected elements.” [Cavalier v. Random House, Inc., 297 F.3d 815, 822 (9th Cir.2002)].
Even if access is present, a Plaintiff cannot state a claim if substantial similarity is lacking. “No amount of proof of access will suffice to show copying if there are no similarities.”
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Robert G. Klein, Esq. is a Los Angeles trademark attorney, business litigation attorney lawyer and a Los Angeles business lawyer who specializes in trademark infringement, copyright infringement, business torts, breach of contract actions and unfair competition. He feels it is important to hire a Los Angeles trademark lawyer and a Los Angeles business lawyer if one is involved in litigation in that locale. Robert G. Klein is a prominent Los Angeles business attorney and is available for consultation on matters involving trademark infringement, copyright infringement, breach of contract cases, business torts, fraud, and business law matters. He has successfully obtained many multi-million dollar jury verdicts. Many of Mr. Klein’s court decisions have been published as case authority and he has appeared before the United States Supreme Court for oral argument. Mr. Klein has also published “Consumer List: Trade Secret or Fair Game?”, which is an article published in the Los Angeles Lawyer Magazine. Los Angeles trademark infringement attorney Robert G. Klein can be reached at (213) 996-8508 or visit our web site at http://www.kleinlitigation.com
His emphasis is on trademark infringement, unfair competition and trade secret litigation. Los Angeles trademark infringement lawyer Robert G. Klein has acted as lead counsel in approximately 60 trials.