In 2010, I wrote a pair of articles on copyright defense. I wanted to refresh the topic of authorship and copyright, and how as an author you may be able to better defend your creation. In the first article, I provided a copyright overview that states that “Registered or not, an Author has a responsibility to ensure they can prove their authorship of a work.” In this second article, I discuss what that means in the 9th Circuit, which is one of the dominant federal courts in the area of copyright.
The Ninth Circuit is one of the dominant federal courts in the area of copyright, courtesy of Hollywood. And, that Court has posted model jury instructions, including the preliminary questions where it states:
The plaintiff has the burden of proving by a preponderance of the evidence that the plaintiff is the owner of the copyright and that the defendant copied original elements of the copyrighted work. Preponderance of the evidence means that you must be persuaded by the evidence that it is more probably true than not true that the copyrighted work was infringed.
In those model jury instructions, it discusses what a jury must consider when determining authorship:
The creator of an original work is called the author of that work. An author originates or “masterminds” the original work, controlling the whole work’s creation and causing it to come into being.
Contributors may be considered authors if they play a role in causing the work to come into being, but not if they only provide the idea. But, again outside the scope of this series. Beta Readers aren’t authors because their role in creating a work is minimal, while their contribution in feedback is valuable.
Original Work. It should be obvious from the evidence that if you’re claiming to be the creator of a work, you are not copying somebody else’s work…because that somebody else has a cause of action against the creator. Beyond that, the work must demonstrate creativity, according to the 9th Circuit’s Originality Jury Question.
I mentioned in the last article that Linus Torvalds had evidence of his source code from the beginning. Had his early work shown code identical to something in SCO’s code base, then the likelihood that a jury would find for him would be lower. It would appear that he copied.
Mastermind Creator and Evolving Product. An author starts with an idea and crafts it. It starts as only the vaguest notion, and during the process of drafting it, revising it, and proofing it, an author controls the creation and causes it to come into being. Thus, the evidence should show that the author was the one who helped develop the original work from a rough idea to finished product.
Linus was able to show older, faulty code that improved over time…drafts, revisions, etc., because of source code tracking via version control software. Not only did that show he did not copy from SCO, it showed his craftsmanship, how that improved over time, and went from an idea to a mature code base.
Summary. In a copyright infringement case, the author must show the jury that they are the producer and mastermind of original work. A registered copyright strongly suggests it, but ultimately, the author should be prepared to bear the burden of proof.
Next time, I will offer my thoughts on how this can be done.