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 fastâ