Chapter 7—Evidence of Copyright Infringement/Piracy

Though seemingly obvious, the evidence necessary to determine the existence or nonexistence of copyright infringement is rarely direct and most usually requires a comparison between the literary works under consideration.RRPCI 7.2

“It must be further shown, that the resemblances (upon comparison) in those parts and pages are so close, so full, so uniform, so striking, as fairly to lead to the conclusion that the one is a substantial copy of the other, or mainly borrowed from it. In short, that there is substantial identity between them. A copy is one thing, an imitation or resemblance another.” ^{1Emerson v. Davies et al., 861.} “Copied errors are, as many learned judges have said, one of the surest tests of copying.” ^{2Hartford Printing Co. v. Harford Directory & Publishing Co., 146 F. 322, C.O. Bull. 1202, 1204 (1906).} “Coincidence of citation is also evoked by the complainant as evidence as copying.” ^{3Lawrence v. Dana et al., 15 F. Cas. 26 (No. 8136). 4 Cliff. 1, 13-16 C.O. Bull. 1545, 1601 (1869).} However, common errors, common passages, etc. may not establish infringement of copyright, noting the following from Simms v. Stanton et al., supra, 2417:RRPCI 8.1

“The errors which complainant claims have crept into respondent’s work, tending to show that she must have copied from him works, are not important enough, in my opinion, to establish the fact of servile copying or piracy. As to the repetitions, all that can be said is that repetitions in a work such as that on the subject of physiognomy must necessarily occur.”

“It is my opinion that, while the respondent did consult and use complainant’s work, she has not drawn from them to a substantial degree; that such use as she did make may properly come within the designation of fair use; that, as to other features of these rival works common to all of the books, she obtained these from sources other than complainant’s works, and to which the latter had no copyright.”

And citing from Emerson v. Davies, et al., supra, 858-859:RRPCI 8.2

“he (plaintiff) refers to divers pages of his own book in comparison with divers pages of the book of the defendants. Now, I say that it is wholly immaterial whether each of these particulars, the arrangement of the tables and forms of the lessons, the gradation of the examples to precede the tables, the illustrations of the examples by unit marks, had each existed in a separate form in different and separate works before the plaintiff’s work, if they had never been before united in one combination or in one work, or on one page in the manner in which the plaintiff has united and connected them.”

And, also from Simms v. Stanton et al., supra, 2415, citing with authority Pike v. Nicholas, L.R. 5 Ch. 251 (1870), the court stated:RRPCI 8.3

“although the defendant had borrowed some from plaintiff’s work, still he had not made such use of plaintiff’s book as to entitle the latter to an injunction; that an author who has been led by a former author to refer to older writers may, without committing piracy, use the same passages in the older writers which were used by the former author; and that an author has no monopoly in any theory propounded by him.”

“The question is, therefore, in many cases, a very nice one, what degree of imitation constitutes an infringement of a copyright in a particular work.” ^{4Emerson v. Davies et al., 861.}