On Sat, May 31, 2008 at 10:29:18PM -0700, Leo Mauler wrote:
--- On Sat, 5/31/08, Hal Duston [email protected] wrote:
On Sat, May 31, 2008 at 09:02:43PM -0700, Leo Mauler wrote:
--- On Sat, 5/31/08, Hal Duston [email protected]
wrote:
If I create a work that is found to be similar to a pre-existing copyrighted work, my ignorance of that work is a perfect defense, as I am not violating the other creator's copyright even if my created work is found to be identical.
I suspect that your hypothesis here isn't accurate. If "my ignorance of that other work is a perfect defense...even if my created work is found to be identical", then there is nothing illegal with taking an existing work, erasing all traces of the previous author, making some superficial changes, and then passing off the entire work as my own. Moreover, if there was no penalty for this behavior, I would also be allowed to make money off "my own song single 'Imagine (This)', hauntingly identical to John Lennon's 'Imagine', though mine has the background tuba", despite current copyright law not permitting this behavior.
That is not my hypothesis, but rather the actual law as it currently stands. The examples you provide above are all of a party reproducing a second party's copyrighted works. The example I provided did not involve any actual reproduction of a copyrighted work, but rather an independently created work that is not derived from another party's work. That is not and infringing act under copyright law.
The exact phrase you used (emphasis added by me) was "I am not violating the other creator's copyright even if my created work is found to be *identical*." I would then ask how one could prove that *any* copy near enough to be "identical" wasn't "an independently produced work", if being "identical" isn't enough to prove that copyright infringement occurred.
By your reasoning if I made an *identical* reproduction of a
If it is a reproduction, then it is a copy and is therefore a derived work copyright law and is possibly an infringing work as it is not an independently created work.
current artist's work, with my own signature on it instead, then I am not violating the other creator's copyright even though my created work is found to be *identical*, because I claim that my work is an independently-created work and also claim that I never saw the other work I allegedly copied.
This is not a hypothetical situation but rather clearly settled caselaw.
"To constitute an infringement under the Act there must be substantial similarity between the infringing work and the work copyrighted; and that similarity MUST HAVE BEEN CAUSED BY THE DEFENDANT'S HAVING COPIED THE COPYRIGHT HOLDER'S CREATION. The protection is thus against copying -- not against any possible infringement caused when an independently created work coincidentally duplicates copyrighted material. Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54 (2d Cir. 1936)."
emphasis mine.
Thanks, -- Hal