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17.17 Copyright Infringement—Copying—Access Defined

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This chapter is being reviewed in light of comments solicited by the Committee from the public. 

17.17 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 prove 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 & Marty Krofft Television Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157, 1172 (9th Cir.1977); see also Art Attacks Ink, LLC v. MGA Entm’t Inc., 581 F.3d 1138, 1143 (9th Cir.2009) (requiring "a reasonable possibility, not merely a bare possibility"). 

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 the 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, 482-84 (9th Cir.2000) (holding that 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 plaintiff’s work and defendant’s access or by plaintiff’s work being widely distributed; often widespread dissemination approach is coupled with theory of "subconscious copying"(citing 4 Nimmer & D. Nimmer, Nimmer on Copyright, § 13.02[A] (1999)); Art Attacks Ink, LLC, 581 F.3d at 1143-45 (finding no access shown under chain of events or wide dissemination theories); Kamar Int’l, Inc. v. Russ Berrie & Co., 657 F.2d 1059 (9th Cir.1981) (finding access shown by dealings between parties and third party on chain of events theory relating to same subject matter). When the subject matter of dealings between parties and the third party differs, the chain is broken and access is not shown. See Gable v. Nat’l Broad. Co., 727 F. Supp. 2d 815, 828 (C.D. Cal. 2010)(citing 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., 212 F.3d at 483 (holding that in absence of any proof of access, copyright plaintiff can still make out case of infringement by showing that songs were "strikingly similar"); see also Loomis v. Cornish, ___ F.3d ___, No. 13-57093, 2016 WL 4578363 (9th Cir. Sept. 2, 2016) ("Where there is no direct evidence of access, circumstantial evidence can be used to prove access either by (1) establishing a chain of events linking the plaintiff’s work and the defendant’s access, or (2) showing that the plaintiff’s work has been widely disseminated.") (citation omitted).