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17.16 Copyright Infringement—Copying—Access Defined

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17.16 COPYRIGHT INFRINGEMENT—COPYING—ACCESS DEFINED

[As part of its burden in Instruction [insert cross reference to the pertinent instruction e.g., Instruction 17.4], the plaintiff must show by a preponderance of the evidence that [[the defendant] [whoever created the work owned by the defendant]] had access to the plaintiff’s work.] You may find that the defendant had access to the plaintiff’s work if [[the defendant] [whoever created the work owned by the defendant]] had a reasonable opportunity to [view] [read] [hear] [copy] the plaintiff’s work before the defendant’s work was created.

Comment

Proof of access requires "an opportunity to view or to copy plaintiff’s work." See Sid and Marty Krofft Television Productions, Inc. v. McDonald’s Corp., 562 F.2d 1157, 1172 (9th Cir.1977). See also Jason v. Fonda, 698 F.2d 966 (9th Cir.1982) (reasonable possibility, not bare possibility, of seeing or hearing the work); Kamar Int’l, Inc. v. Russ Berrie & Co., 657 F.2d 1059 (9th Cir.1981) (access and reasonable opportunity).

Supplemental Instruction

Depending on the evidence at trial of the defendant’s access to the allegedly infringed work, the court may instruct the jury about factors that show such access, by adding the following after the last paragraph of this instruction:

Access may be shown by:

[1. a chain of events connecting plaintiff’s work and the defendant’s opportunity to [view] [hear] [copy] that work [such as dealings through a third party (such as a publisher or record company) that had access to the plaintiff’s work and with whom both the plaintiff and the defendant were dealing] [or]

[2. the plaintiff’s work being widely disseminated] [or]

[3. a similarity between the plaintiff’s work and the defendant’s work that is so "striking" that it is highly likely the works were not created independent of one another].

Regarding the evidence necessary to demonstrate access, see Three Boys Music Corp. v. Bolton, 212 F.3d 477, 482–484 (9th Cir.2000) (reasonable opportunity is more than a "bare possibility," such as one based on mere speculation or conjecture; reasonable access can be shown by a chain of events connecting the plaintiff’s work and the defendant’s access or by the plaintiff’s work being widely distributed; often the widespread dissemination approach is coupled with a theory of "subconscious copying"(citing 4 Nimmer & D. Nimmer, Nimmer on Copyright, § 13.02[A] (1999)); Kamar Int’l, Inc. v. Russ Berrie & Co., 657 F.2d 1059 (9th Cir.1981) (access shown by dealings between the parties and the third party on a chain of events theory relating to the same subject matter). Where the subject matter of dealings between parties and third party differs, the chain is broken and access is not shown. See Meta-Film Assocs. v. MCA, 586 F. Supp. 1346, 1355 (C.D. Cal. 1984).

As to the plaintiff demonstrating that there is a "striking similarity" between works to support an inference of access, see Three Boys Music Corp., 212 F.3d 477 at 483 (in the absence of any proof of access, a copyright plaintiff can still make out a case of infringement by showing that the songs were "strikingly similar").