17.15 COPYING—ACCESS AND SUBSTANTIAL SIMILARITY
Instruction [insert cross reference to the pertinent instruction, e.g., Instruction 17.4] states that the plaintiff has the burden of proving that the defendant copied original elements from the plaintiff’s copyrighted work. The plaintiff may show the defendant copied from the work by showing by a preponderance of the evidence that the defendant had access to the plaintiff’s copyrighted work and that there are substantial similarities between the defendant’s work and original elements of the plaintiff’s work.
Regarding access, substantial similarity, and independent creation, see Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1018 (9th Cir.1985), cert. denied, 474 U.S. 1059 (1986). See also Instruction 17.12 (Copyright Infringement—Originality), 17.16 (Copyright Infringement—Copying—Access Defined); and see Comment to Instruction 17.17 (Substantial Similarity—Extrinsic Test; Intrinsic Test). The word "copying" is described by the Ninth Circuit as "shorthand" for the various activities that may infringe any of the copyright owner’s "exclusive rights described at 17 U.S.C. § 106." S.O.S., Inc., v. Payday, Inc., 886 F.2d 1081, 1085 n.3 (9th Cir.1989).
For guidance in modifying the instruction so that the jury may consider evidence of a "striking similarity" between works to infer access, see Three Boys Music Corp. v. Bolton, 212 F.3d 477, 485 (9th Cir.2000) (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’" (citing Smith v. Jackson, 84 F.3d 1213, 1220 (9th Cir.1996) and Baxter v. MCA, Inc., 812 F.2d 421, 423 (9th Cir.) (access may be inferred from "striking similarity"), cert. denied, 484 U.S. 954 (1987); Selle v. Gibb, 741 F.2d 896, 903 (7th Cir.1984) (a striking similarity is one sufficiently unique or complex as to make it unlikely that it was independently created).
If a plaintiff shows the defendant had access to the plaintiff’s work and that there is a substantial similarity between the infringed and infringing works, a presumption of copying arises shifting the burden to the defendant to rebut or to show that the alleged infringing work was independently created. Three Boys Music Corp., 212 F.3d at 486 ("By establishing reasonable access and substantial similarity, a copyright plaintiff creates a presumption of copying. The burden shifts to the defendant to rebut that presumption through proof of independent creation." (citing Granite Music Corp. v. United Artists Corp., 532 F.2d 718, 721 (9th Cir.1976)) See also Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 741 (9th Cir.1971) ("It is true that defendants had access to plaintiff’s [copyrighted] pin and that there is an obvious similarity between plaintiff’s pin and those of defendants. These two facts constitute strong circumstantial evidence of copying. But they are not conclusive, and there was substantial evidence to support the trial court’s finding that defendant’s pin was in fact an independent creation.") (citations omitted).
In the Ninth Circuit, the access and substantial similarity elements of infringement are "inextricably linked" by an inverse ratio rule. See Three Boys Music Corp., 212 F.3d at 486 (the rule "requires a lesser showing of substantial similarity if there is a strong showing of access" but noting "[w]e have never held…the inverse … [that] a weak showing of access requires a stronger showing of substantial similarity."); Swirsky v. Carey, 376 F.3d 841, 844-45 (9th Cir.2004) (holding that where a high degree of access is shown, a lower standard of proof of substantial similarity is required and noting that this burden is carried by the plaintiff); Rice v. Fox Broadcasting Co., 330, F.3d 1170, 1178 (9th Cir.2003) (under the "inverse ratio rule," court requires a lower standard of proof of substantial similarity when a high degree of access is shown and "a prominent factor" in using inverse ratio analysis is a "concession of access by the defendant to the plaintiff’s copyrighted work").