Copyright Infringement – How Much Similarity is Required For “substantial Similarity”?

In order to bring a copyright infringement lawsuit, the copyright holder must be able to establish three elements. The first, ownership of a valid copyright, requires that the copyright relate to an original work of authorship that is fixed in a tangible medium. The second element requires actual copying of that work, which can be shown using either direct evidence, indirect evidence, or a combination of both. Finally, a copyright holder must prove misappropriation. It is this third element that goes directly to the question posed in this article. How much of my work can be incorporated in another work before it constitutes copyright infringement?

Unfortunately, there is no definitive answer to this question. Instead, one must look to case law precedent to establish how much is too much. That being said, when alleging copyright infringement, the copyright holder must show that what was indeed taken and incorporated into the allegedly infringing work was copyright protectable. Once this is established, it is up to the plaintiff to show that the audience for the work will recognize “substantial similarities” between the two works. Although there is no set percentage, for example, to determine whether substantial similarity exists, two commonly recognized methods are available to assist in the misappropriation portion of a copyright infringement analysis.

The first method, known as the subtractive method or the abstraction/subtraction approach, first identifies what parts of the work are protectable. The method then directs the finder of fact to eliminate, or subtract, those elements that are not protectable. The remaining elements are then compared to the allegedly infringing work to determine whether substantial similarities exist.

The second method, known as the totality method or total concept and feel approach, leaves the works in their entirety when doing the analysis. In particular, the entire copyrighted work is pitted against the allegedly infringing work to determine whether a substantial similarity exist. Clearly, it is the goal of the defendant to show differences between the two works in an effort to avoid liability.

Today, courts will employ each of the above methods, and at times both methods, to aid in the misappropriation analysis. Given the factual nature of copyright law, it is not out of the question for one method to favor a copyright holder while the other method favors the alleged infringer. Therefore, it is worthwhile to, at the outset of any intended action for copyright infringement, analyze the likelihood of success under both methods. This will not only enable the copyright holder to identify the strengths and weaknesses of the particular case, but it will also allow the copyright holder to make a decision whether or not it is worthwhile pursuing a copyright infringement lawsuit. In the alternative, cease and desist letters, negotiation, for an amicable resolution, or other means short of litigation, such as copyright licensing, may be a possibility worth exploring.

Therefore, while ownership of a valid copyright and actual copying are two factors that also require particular analysis, oftentimes the misappropriation element is the determinative factor in a copyright infringement matter. Copyright holders are well-served to fully analyze the extent of misappropriation just as defendants to a copyright infringement lawsuit should constantly be looking to identify elements that negate a finding of substantial similarity.

Violation of Copyright Law – 1957

The Indian Copyright Law under the Indian Copyright of 1957 is the true manifestation of the Berne Convention of Copyrights, of which India is an active member. Moreover, India is also a dynamic member of World Intellectual Property Organization, Geneva. The act was put in place in 1957 by the government of India to protect the interest of pioneers and dreamers.

The Indian Copyright Law of 1957 bans the reproduction of a previously written artistic material or performance rights without prior consent of the owner. The law clearly states that the owner has the sole right on his copyright. The law not only protects works of art from ‘theft’ but also protects dramatic, artistic and musical works along with cinematography films and sound recording.

The use of ‘available material’ without sanction of author for personal profit is illegal and this act breaks the copyright law 1957. There are special copyright attorneys in India that can help you in the case of any possible violation. Violation of copyright law 1957 is an offense and is punished likewise. However there are some cases where the law cannot be enforced. If the theme is the same, but it is presented as a new work with no reference to the original one, there is no violation of the law.

You will get the best results if you take help, in case of any violation, of trained copyright lawyers. Moreover there are a number of agencies in India offering copyright services, and can help you in case of any breach of intellectual property. Many pioneers create a copyright management system in which they protect their online data using passwords and registration. However be careful that you hire a reputed Indian attorney for your work.

Your Photo Session – But Not Your Pictures

PICTURES, PICTURES, PICTURES!!! I have to address this subject because honestly most people (especially aspiring models) do not understand the copyright law pertaining to professional photographers. With that being said….here goes.

A photographer, by FEDERAL law, owns every picture that he or she takes. Period. Please understand that just because you pay for a photo shoot does NOT mean you own your images. When you pay a photographer for a photo session, you are only paying for their services. A photographer has the right to express how they want their images used and they can even exact a time frame on the usage of those images. For this very reason, you must understand a photographer’s terms BEFORE you step in front of the camera. Not all photographers operate the same so make certain you know exactly how you may use your images prior to your session.

Now, I know you might be thinking, “That’s unfair!”. Unfair or not, that’s the law. It’s no different than if you took pictures on a family vacation. By law, you own those images and by law you have the right to legally pursue anyone who uses your images without your permission. The same applies to professional photographers. If you use a photographer’s images without their permission or in any way that exceeds the boundaries of the agreement, you are breaking the law. It’s called copyright infringement.

The purpose of my blog is to help educate aspiring models. I posted a link below to better help you understand this post. Please read this article so that you know for yourself; don’t take my word for it. The biggest mistake that aspiring models make is not knowing how the industry works. Read. Ask questions. Do your own research. Know what you are getting into before you agree to any terms. I hope the link below helps!

Copyright Your Band Logo – Tips to Protection

There is a lot of time and effort that goes into creating a logo that accurately represents your band. As such, it’s important to take the proper steps to protect your art so you have some recourse if infringement occurs.

For the most part, band logos can be considered an original and creative form of art – assuming the logo is more than just the name of the band without an artistic element. As such, they can be protected under Copyright Law as a Visual/Artistic work.

Just to ensure this is clear, the artwork for the logo can be protected under copyright law, but not the name of the band itself. This is because copyright law does not protect names, slogans, or catch-phrases. If you were looking to protect against other bands using your actual name vs. the artwork, this would fall under Trade-Mark Law.

In order to protect your band logo under copyright law, all you have to do is put your logo in a tangible form (on paper, on CD, on a hard drive, on the back of a candy wrapper, etc.). Once it’s in this fixed form, the creator owns the exclusive rights to produce or reproduce the art.

Although you automatically own the copyright to the logo artwork the moment it is put in a fixed form, it’s best to have taken further steps to prove to the courts that the work was originally yours should someone (perhaps another band) steal your logo or a big portion of it

In General, the best option for added protection is through a reputable copyright registry. For ultimate protection, one should register their logo as soon as it has been completed, before showing others.

There are a number of options for copyright registries. You could register through the Government, through associations, or through online registries. When doing your research, ensure you know all the costs involved, whether there are membership or renewal fees, and whether they provide you with a time-stamped registration certificate.

As a side note, do not rely on the ever-popular “Poor Man’s Copyright Method” (i.e. sending yourself your work through mail) because it is highly unlikely to hold in a court of law should someone infringe on your logo design.

Regardless of which method you choose to protect your band’s logo, remember to register it before you show it to third parties. Good Luck!


The above information is meant as a general guide to further your copyright knowledge and does not constitute legal advice. For questions about your specific work, you should consult a copyright lawyer in your country.

Protecting Your Eco-Digital Property From Internet Thieves

When I was on Google I came across links to my own books in eco-digital (read E) format. I felt livid, violated and was burning mad at a stranger in Canada who took the liberty to publish my book, and many other spiritual authors’ books on her own website, and distribute them freely for all on the web to read. That would be fine if we were compensated for our books. But cheated out of book royalties seems to go hand in hand with recording artists whose songs are playing all over the World Wide Web, without compensating the artists as well.

Being somewhat tech-challenged I accidentally came upon one of my own links that when clicked on, opened a new browser window that showed, “The page cannot be found.” A-ha! I quickly learned that if the link is to a file, such as an E-book or an MP3, with the identical URL (address) that is live on a server, any server, the link will open to the actual content.

The remedy; Save the e-file content (E-Book, MP3) on your computer, delete that actual file from the server (such as your website) rename the link, and then upload it to the server, and re-publish the site.

If you sell your audio files, E-books, or any file that can be opened with the click of a mouse, it may require that you have a monthly or even a weekly link name clean up.

If you notice a lull in sales, type the name of your song, or book, into Google, or any other popular search engine, to see if someone has taken the liberty to distribute your hard work on their website, thereby cheating you out of royalties.

With just about everything becoming digital, links to files that are not free will simply have to be re-named occasionally, or weekly, to ensure that you receive the compensation your hard work is entitled to.  

Yes, it’s a hassle. However, not taking care of your actual business will amount to your not receiving business. Laziness in this case is not a luxury you can afford, especially when you’re counting on that money to buy necessities such as food. 

If you do have files on your website that are clearly not your content, do yourself and the person who owns the copyright a favor and delete what you did not create.

With the growth of the internet being mind boggling, there is no way to police your own copyrighted property unless you either have someone do the checking for you or you do it yourself.

Unfortunately with popularity come freebie-thieves. Stop internet thieves from distributing your electronic files by making sure you either grant extremely limited access to the file, or re-name it weekly. 

Copyright Law and Dying Newspapers – Congressional Hearings

Newspapers probably are the biggest victims of copyright infringement and generally they didn’t care much, as that was old news by the time anyone copied it and the new news is today. Yesterday is gone; “That was Yesterday!” like the lyrics in “Foreigner” the Rock Band’s famous song.

Today, however everything has changed. Recently, in the congressional hearings the dying newspaper industry had several of the largest newspaper owners in the country complaining that they were being ripped off, that their content was being displayed on blogs, e-mail newsletters, and copied directly off their websites. In many cases, these so-called electronic copyright infringement violations were completely legal, as only 200 words or less were copied and the newspaper was cited.

Unfortunately, in many Internet forums the posters to discussions, often using only screen names, will copy and paste the entire article into the discussion group. And do this without even citing where it was from, and rather than putting up a link that people could click on to go to the newspaper’s website. The newspapers during the Congressional hearings were considered by many to be “grabbing at straws,” looking for help from Congress to crack down on online media (something they themselves are now trying to break into), and using copyright law as their reason.

Of course, luckily the Internet media was there also during these Congressional Hearings and made their case. It appeared that the legislators did not side with the newspapers. Although many newspapers are having their content lifted, almost in real time, not the next day; and the newspapers admit there is nothing they can do about it, as they cannot chase every single blogger around the Internet. Please consider these issues in copyright law, as they are very much part of our modern information age.

Copyright Law

What is a copyright?

A copyright is a type of legal protection afforded to creators of original works, including literary, musical, dramatic, choreographed, and architectural works, motion pictures, sound recordings, and works of art, such as paintings, and sculptures.

Copyright protection prevents another individual from copying, performing or using the piece of work without the express consent of the author or creator and establishes the ownership of the piece of work. Protection is available to both published and unpublished works. To be able to be copyrighted, a work must be original and must have already been written or recorded. This is because a copyright does not protect an idea or plan; instead, it protects the expression of that idea or plan.

Can a website be copyrighted?

Any original work or authorship appearing on a website can be protected under copyright law. This may include any text or articles, digital artwork, photographs and animation to appear on the website. Because a website cannot be sent to the Copyright Office in the mail, the procedures for registering the contents of a website are different than a standard document or photograph.

A key aspect of a website that cannot be copyrighted is the website’s domain name. Responsibility for domain names falls under the jurisdiction of the Internet Corporation for Assigned Names and Numbers, a nonprofit organization located in California that has assumed the responsibility for assigning domain names by means of accredited registers.

Who can obtain a copyright?

Copyright protection exists from the time a piece of work is created. A copyright is obtainable by the author or creator of a piece of work or, in the case of work made for hire, the employer or contractor.

The authors of a joint piece of work are co-owners of the copyright unless there is an agreement to the contrary. Mere ownership of a piece of work does not give that owner the copyright. Transfer of ownership does not automatically transfer the copyright to the individual who received the piece of work.

While minors may claim a copyright, many state laws regulate the business dealings involving the copyrighted work own by the minor.

Copyrighting Your Work is Work

There was an article in Digital Pro Photo magazine about the steps to follow if you think your copyright has been violated and how to proceed smartly. Basically it said “be reasonable” in your expectations. This not only will help protect your copyright, assuming you filed one correctly, but it will enhance your chances of having a judge find in your favor and not lose the whole judgment because of legal fees, etc.

This is a great article for budding photographers as well as seasoned professionals. And, it got me to thinking about my own copyright…which Margo Pinkerton (from the Barefoot Contessa’s Photo Adventures) has helped me correct on my images. I’ve discovered that I need to do a lot of work on currently available images and that I have to steam line my work flow to make certain it protects my work in the future. A lot of work for certain, but what’s the alternative. If, or perhaps when, someone accidentally or deliberately uses one of my images without permission I don’t want to be left high and dry.

By the way, let me pass on Margo’s advise on how a copyright needs to be written to be correct. There are three ways (without the quotes, of course):

  • Copyright 2008 “Your Name”
  • Copr. 2008 “Your Name”
  • © 2008 “Your Name”

As it turns out Digital Pro Photo’s website has a lot of good information, from back issues of the magazine, on the subject of copyright. Anyone interested might want to check it out.

5 Things to Consider If You Are Working With Resell Rights Products

Electronic books, articles and other writings with Resell rights provide you with a pre-written product that you can resell or give away as your own. Depending on your experience, creating a product of your own can seem like an impossible task. Creating and distributing your own products does take time but it’s not impossible, actually it’s not as hard as you might think. But, until you get one created there is a lot of material that has prewritten ads, a sales page, auto responder course and a book too, that you can edit a little bit and call your own. Resell Rights products give you and entire package of pre-written material that you can resell within minutes. Many internet resellers use resell rights products to make a very comfortable living.

These products come with a license that gives you a detailed list of ways you can and cannot use them. It is imperative that you read and understand this license. Products with Resell Rights have made it easy for many people to make money on the internet, but you should use them wisely.

Most of the resell rights products you’ll be working with, will give you the credit for writing and putting together all the resell material for it so, it is your product. In order to make the maximum profit from reselling I want to give you 5 important things to consider.

1. Don’t resell the resell rights to everyone

Too many people with resell rights to the same product would have us competing with each other and profits would suffer.

2. How Much Should You Charge

Pricing your products too low could interfere with its distribution. Your buyers who plan to resell, might not see a potential for profit if you don’t.

3. Clearly state the terms and conditions of the resell license

The resale license that is included with every package is extremely important. It tells in detail exactly what the owner can and cannot do with it. Because adobe documents are not easily changed, I suggest you offer the reseller license in a PDF.

4. Make sure you comply with the terms of the license yourself

If you promise to limit the amount of resell rights you will sell and then exceed this amount, your customers will not trust you and your credibility suffers. Do what you say you will.

5. When to sell the resell rights to your products

If you have a good quality product with a high potential of selling, you should sell it yourself in the beginning. But, you could stick to putting a product together and let other marketers sell it for you. In order to maximize your profits you probably do not want to sell the resale rights at the product launch.

Insanity, P90x & Slim In 6 – The High Cost Of Piracy

The urge to buy or download pirated copies of expensive workout products is strong. If you have the technical savvy, or have found somebody online who’s willing to sell you a knocked off copy for half price, then what’s not to like? Get the quality goods, save cash, workout and get the body you want, all without breaking the bank. Smart? Actually, no, and not just because we retail these products. Read on to discover some very real dangers involved with these activities, and then ask yourself-is it really worth it?

One of the biggest temptations out there right now is to buy a burned copy of your favorite workout from a Chinese vendor. They’ll sell them to you for almost half price, and promise you that you’ll get everything you need in the box. Not true. We’ve had a number of people contact us here at EFR asking if we can sell them the workout calendar, or the nutrition guide, or any other key component of the workout that didn’t come with the DVD’s,. Frequently the DVD’s themselves don’t play. We know this for a fact: we ordered a sample from two Chinese vendors out of curiosity. One never arrived, and the second had three DVD’s that wouldn’t play.

What’s even more dangerous is that you’re giving unscrupulous people your credit card information. If you haven’t heard, identity theft is a growing crisis for banks and people who find their accounts wiped clean, and sending your financial information to people with no problem ripping off valuable products is a bad, bad move. Many of these illegal vendors are involved a wider array of criminal activity, and selling your credit card information is probably the least of it. So-ask yourself before you buy knock off products online for ridiculously cheap prices-is the high chance of identity theft and incomplete or missing products worth the money you’ll save?

Another avenue that people take is to download these workouts from the internet for free. Of course, you’ve probably already heard about all the viruses out there, and how they’re embedded in these popular products. How millions and millions of computers are now enslaved as ‘zombies’ to hackers who use their combined processing power and online capabilities to attack big, secure targets. This isn’t alarmist talk-google any of the terms I just mentioned, and you’ll pull up a number of reports from CNN, the NYTimes, etc. Downloading large, popular programs is a fast track way to infect your computer. Further, these downloads don’t come with all the required materials. No Nutrition Guide, no workout calendar, none of the other supplemental and vital information that comes with the authentic package.

Of course, the greatest damage won’t be done to you, your identity or computer-it’s being done daily by thousands of people who engage in these practices to Beachbody itself. Now, I’m not trying to make you feel sorry for them, but simply point out a fact. If they lose enough money to piracy, they’ll stop becoming profitable, or as profitable, and will stop making these amazing products. We’ve already heard from them as to how much they’re being hurt financially by all this piracy, and it seems like it will only get worse.

And finally, think about the message these fitness programs promote: P90X, INSANITY, all of them urge you to discover a new form of integrity, of self-respect, to reach deep into yourself and become a new, better you that is proud of not only their body but the determination, courage and effort it took them to get there. How can you begin such a journey if it starts based in theft and ripping off the very trainers and people who are seeking to help you realize your goals?

Piracy. We’re warned against doing it so much that we tend to tune those warnings out, and hear instead, ‘Blah blah blah’. But piracy has very tangible, real consequences, as the hundreds of thousands of people who experience identity theft can attest, or the ruined computers and the help they give hackers show, or the general disrespect to both yourself and these incredibly trainers that stems from ripping them off despite all their hard work. If you’re tempted to steal a copy of these workouts-don’t. Start this journey with integrity, because trust me, it’s truly, truly worth it.