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What is required to prove copyright infringement?

To prove infringement, a copyright owner must prove that he or she is the owner of a valid copyright and that someone copied original elements from the copyrighted work. When the work has been registered, a valid copyright is assumed. To prove that someone copied original elements of the work, the copyright owner needs to establish that the copier had access to his work and that there is a substantial similarity between the copy and original elements of the work.

Access to the original work sometimes can be proven directly, but it can also be shown by proof that the copier had a reasonable opportunity to view the original work before the copies were created. Sometimes, there is direct proof of access, such as where an artist has shown its work to someone who later copies it. Often, however, there may not be that level of direct proof. A reasonable opportunity to view the original work, however, can be shown by virtue of the public display of the original work, public performance of the original work, or that the original work appeared in print or digital media. A copyright holder need not prove that the infringer actually accessed those materials. Rather, the fact that the copier had a reasonable opportunity to access them is sufficient.

Substantial similarity is a fact-intensive analysis that involves the look and feel of the copies in comparison to the look and feel of the original work. Essentially, if the average person believes that the copies and the original share sufficient common characteristics, that will be sufficient to prove substantial similarity.

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