In order to prove that a work was copied, sold, or performed without authorization, the copyright owner must demonstrate that the person accused of infringement had a reasonable opportunity to view or hear the copyrighted work and that the two works—the infringer’s and the copyright owner’s—are substantially similar. The first requirement—the occasion to view or hear the copyrighted work—is referred to as access. If the infringement involves identical copies, such as photographs copied from a magazine, access may be presumed and does not need to be proved. That’s because in cases of verbatim copying, it is virtually impossible that two works could have been independently created.
EXAMPLE: The makers of Beanie Babies successfully sued a company marketing a pig bean bag known as “Preston the Pig” that was identical to the Beanie Baby known as “Squealer.” The similarity between the two was so close as to create a reasonable presumption of access. (Ty Inc. v. GMA Accessories Inc., 132 F.3d 1167 (7th Cir. 1997).)
When the copies are not identical, access can be proven in various ways.
EXAMPLE 1: The owners of copyright in popular children’s characters proved access because the representatives of a fast‑food chain had visited their headquarters and discussed use of the characters in commercials. (Sid & Marty Krofft Television Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157 (9th Cir. 1977).)
EXAMPLE 2: The owners of the song “He’s So Fine” sued George Harrison, alleging that Harrison’s song “My Sweet Lord” infringed their copyright. It was determined that Harrison had access to “He’s So Fine” because the song was on the British pop charts in 1963 during the same period when a song by the Beatles was also on the British charts. (Abkco Music, Inc. v. Harrisongs Music, Ltd., 722 F.2d 988 (2d Cir. 1983).)
As a general rule, the more popular a work, the easier it is to prove access. Conversely, if a work was not published, the copyright owner has a harder time proving access.
Proving access generally requires direct evidence. For example, a t-shirt company alleged access by its claim that a representative of the company that made Bratz dolls attended the Los Angeles County Fair where the t-shirt company had a display. The Ninth Circuit Court of Appeals dismissed this as a mere “bare possibility” because there was no direct evidence of the representative seeing the design or of the design being widely disseminated. (Art Attacks Ink LLC v. MGA Entertainment Inc., 581 F.3d 1138 (9th Cir. 2009)).
Of course, in order to prove access, the party alleging infringement should be able to demonstrate a chronology that makes sense.
EXAMPLE: Two men alleged that they had sent their version of a song to a talent scout representing Britney Spears and claimed it was later infringed by the Spears song “What U See Is What U Get.” However, the undisputed evidence at trial showed that Spears had recorded her version several months before the two men had even submitted their composition. (Cottrill v. Spears, 2003 U.S. Dist. LEXIS 8823 (E.D. PA 2003).)
In some federal circuits, noticeably the 9th Circuit, the higher the degree of access to a work, the less the degree of similarity required, a principle known as the “inverse ratio” rule.