If you are the owner of a copyrighted work and you think you have been copied, there are some questions to consider before taking any action. Instances where a copyrighted work has been wholly duplicated, copied and pasted in its entirety, can be fairly straight forward infringements of the reproduction right. But, what about situations where only pieces of a work have been reproduced? Well, then you have to look at whether 1) the reproduction rises to the level of "copying" under the Copyright Act and 2) if there is copying, whether that copying is actually illegal. [1]
Now, I am going to give you some rules to consider that are the same rules used in a court of law. Nine times out of ten, you will not find yourself in a court of law. Instead, you will be considering whether to issue a takedown notice under the Digital Millennium Copyright Act ("DMCA") or whether to consult with an attorney for possible legal action. Regardless, you want to have a good-faith legal basis to take whatever actions you're going to take and, as a creator, it is just good business to have a working understanding of these laws and rules. So, let's take a look.
Is It Actually Copying?
In order to demonstrate that the reproduction right has been infringed, a copyright owner must first show that copying has actually happened. Independent creation, i.e. different artists coming up with the same or similar creations, is a defense to a claim of infringement so, copying cannot just be assumed because items are look, sound, feel, or seem similar.
Proving copying usually involves demonstrating that the other person had access to your work and a reasonable opportunity to view it. This generally cannot be shown by conjecture or speculation. [2] Usually, you cannot demonstrate access just by showing that your work was posted on the Internet as that shows that access is but a mere possibility. [3] But, other courts have made a distinction between the Internet at large and when two individuals use the same third-party website for their work. [3] So, if your work and the work you think is infringing are both posted on the same website (such as Etsy), that may be acceptable evidence of access. But, if your work is posted on your own website, you may need additional evidence to demonstrate that the other person copied your work.
In addition to access, the two works must share similarities that "one would not expect to arise if the two works had been created independently." [4]
If you cannot prove the person had access to your work, you can still show copying if the two pieces are so "strikingly similar" that there is pretty much no way they were independently created.
Is the Copying Unlawful?
If you believe the conduct in question constitutes copying per the rules above, you then have to determine whether the copying is unlawful. This step is necessary because not all copying is illegal. This may be determined in different ways but, looking at the objective similarities of the works, if there are enough protected elements copied so as to render the works "substantially similar" then it is likely infringement has occurred. I emphasize "protected" because not everything in a work can be shielded from copying. So, when determining whether the copying is illegal, you need to filter out the stuff that is not protectible because you have no ownership over those pieces.
For example, in Rentmeester v. Nike, the court determined that, although Nike had access to a photographer's original work and copying was proven, the things that were copied were not protectible. The non-protectible elements included the concept and the pose. [6] You can also find a good general discussion on substantial similarity on Wikipedia.
The Takeaway for Crafters
If you feel like you have been copied, you need to do an analysis before you take further action. You need to look at whether the copy is a wholesale duplicate or if there are only parts copied. If the copy is partial, you need to determine whether the parts that were copied are protectible and, if so, whether this results in works that are substantially similar. The same process should be followed if you have been accused of reproducing someone's work. This is a lot of information to process and no one expects you to perform this analysis at an attorney level. But, you want to have a good-faith basis behind any actions you take to protect or defend yourself in a copyright dispute.
Citations:
[1] Rentmeester v. Nike, Inc., 883 F.3d 1111, 1118 (9th Cir. 2018), overruled on other grounds, Skidmore as Trustee for Randy Craig Wolfe Trust v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020).
[2] Jones v. Blige, 555 F.3d 485, 491 (6th Cir. 2009).
[3] Schenck v. Orosz, Case No. 3:13-cv-00294 (M.D. Tenn. Mar. 10, 2016).
[4] Rentmeester v. Nike, Inc., 883 F.3d 1111, 1117 (9th Cir. 2018).
[5] Herzog v. Castle Rock Entertainment, 193 F.3d 1241, 1248 (11th Cir. 1999).
[6] Rentmeester v. Nike, Inc., 883 F.3d 1111, 1121 (9th Cir. 2018)
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