Proving Infringement - Creative Law Center

Proving Infringement

Proving Copyright Infringement: Get the Evidence [Live Workshop]

There’s a significant amount of outrage going on these days among the creative class. And with good reason.

Artificial intelligence programs have been training on the creative work of artists, writers, photographers and who knows what else to generate images, written work, audio files, even videos.

One question is: Does that machine “training” on the creative work of artists who have not given consent for their work to be used constitute infringement?

Before that question can be answered, you need to understand what infringement is and how it can be proved.

In fact, set aside the whole “AI is ripping me off” outrage for a moment (we’re going to talk about that in depth next month). You need to understand what infringement truly is and how to prove it to protect your work against human evil-deed doers.

This is how a judge instructs the jury on infringement in a copyright case:

“Anyone who copies original expression from a copyrighted work during the term of the copyright without the owner’s permission infringes the copyright.”

This month’s workshop is a deep dive into what “copying” an “original expression” means.

It may seem obvious to you what “copying” is. An identical reproduction is copying, for example. But not all infringements are identical reproductions. In fact, very few infringements are identical. Those that are can be dealt with easily.

If it’s not identical, how similar does it have to be?

Well, here’s the answer – the infringing work has to be substantially similar to support an infringement claim.

Now you know and there’s no reason to attend the workshop.

Actually, there’s more to it. (I know, you’re surprised.)

Showing substantial similarity requires a side-by-side comparison of the original work and the infringing work.

Here’s the kicker – not everything that is similar between the two works can be used to prove infringement.

A side-by-side comparison of actionable similarities is the evidence you need in order to win a federal case or a case brought before the Copyright Claims Board. In fact, this is the evidence you need to resolve any infringement dispute whether it goes to court or not.

That’s what we’re going to look at in this month’s workshop – how to do a side-by-side comparison of two works in order to show infringement focusing on which similarities are evidence of infringement and which are not. We will look at comparison examples of both visual art and written work.

In this workshop, you will learn how to gather, preserve, and analyze evidence of infringement. When it comes time to enforce your rights, knowing how to do this will help you make better decisions.

This workshop is being offered as a stand alone opportunity. You do not have to be a member of the Creative Law Center to attend it (members will have access, of course, and need not purchase the workshop separately). You’ll get an email with the Zoom link for Wednesday, January 18 at 1 p.m., ET once you sign up. You will have access to the replay if you can’t make it then.

This is a live, interactive workshop using Zoom. You will be able to ask questions in real time, so bring your list.

Join me on Wednesday, January 18, 2023 at 1 pm ET as I share the strategies I use to develop evidence of substantial similarity to protect the creative work of my clients.


About the Author

Kathryn Goldman helps small business people, writers, artists, and creative professionals make a living from their creative work by teaching them how to protect and enforce their rights. She is an attorney who writes these posts to help you be more thoughtful about intellectual property and the law as you build your business, write your stories, and create your art.