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Alex Reese
Alex Reese, Lawyer
Category: Intellectual Property Law
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Experience:  Experienced in intellectual property law
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what is the burden of proof required to prove copyright infringement

Customer Question

what is the burden of proof required to prove copyright infringement for a set of house plans
Submitted: 4 years ago.
Category: Intellectual Property Law
Expert:  Alex Reese replied 4 years ago.
copyright infringement requires evidence of copying (direct or indirect) and substantial similarity of the works. Indirect proof of copying is reasonable access and substantial similarity. Of course it assumes a valid copyright exists and it the use does not fall under fair use.
Alex Reese, Lawyer
Satisfied Customers: 3026
Experience: Experienced in intellectual property law
Alex Reese and 4 other Intellectual Property Law Specialists are ready to help you
Customer: replied 4 years ago.
can you define substantial similarity....our company has just been served papers over a design we drew that we only used once and it is similar in terms of floor plans with a competitor but the exteriors are completely different but we have many different versions of the floor plans that we use and only one is similar....it is a direct competitor and we feel as if they are trying to use this to gain an unfair advantage and set a precedent for simple, efficient two stories that are difficult to substantially differentiate because of design constraints....it is a difficult decision because we really don't want to settle and give them the idea that we are willing to pay up every time they see anything remotely similar
Expert:  Alex Reese replied 4 years ago.
There is no simple or easy definition. Only after reviewing all the facts/evidence could someone give you an opinion on that, and ultimately that is a question that only a court can decide. The key is to look at the expressive, creative & original (copyrightable) aspects of the work and see how much of them are present in the allegedly infringing work. If elements are not original/creative, then they can be used freely, and copyright does not cover functional aspects of a work...so if there are only a few ways to do things then its a result of function not creativity etc. Of course, copyright infringement requires copying, so independent creation is a defense.
Customer: replied 4 years ago.
so if we can prove that our designer independently drew up multiple floor plans for a certain "building envelope" through a history of dated designs, then it is up to the plaintiff to prove that we actually physically copied something, even if one of the designs is very similar
Expert:  Alex Reese replied 4 years ago.
yes that's possible, the plaintiff's evidence of copying (direct or circumstantial) will be weighed against your evidence of independent creation. along those lines, you can simply show that his copyright is not valid, at least not with respect to the portions of the work that you are accused of taking i.e. they are in the public domain and are well-known prior to his creation or just not creative/original enough to merit copyright protection.

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