Reproduction

Question 1

Three steps to showing that a defendant improperly reproduced a work in violation of 106(1):

Answer 1

1. D was “copying”
2. D produced a “copy”
3. D improperly appropriated from P’s work

Question 2

What are the three ways in which a defendant can be said to have copied a work?

Answer 2

1. mechanical reproduction
2. replication in a different medium
3. had copyrighted work in mind when creating a substantially similar embodiment

Question 3

Can subconscious copying amount to infringement?

Answer 3

Yes

Question 4

There are four options for the plaintiff to prove that D was copying:

Answer 4

1. Direct Evidence
2. Access + Probative Similarity
3. Striking Similarity
4. Common Errors

Question 5

What is the relationship between access and probative similarity?

+case

Answer 5

Higher showing of access lowers the bar for probative similarity, and vice versa

(Three Boys)

Question 6

How can you satisfy the access element?

Answer 6

By showing that D had reasonable access (including work’s wide dissemination – Three Boys).

But an inference of access cannot be based on mere speculation.

Question 7

Can a showing of striking similarity be overcome?

Answer 7

Yes, if D can show lack of access to P’s work