I once worked for a company that developed character-based properties (meaning properties similar to Disney movie characters or Marvel Comics superheroes). Employees in the company’s studios and workshops created these characters and the stories that brought them to life, much like the product development employees in my novel Playing the Game who created the action figures designed to save the company.
In the real-life company I worked for, management had policies in place to keep any unsolicited submissions we received from people who wanted us to produce their work away from our product creation teams. Why? So we could better defend infringement cases, if someone claimed we had taken our properties from their work. Nevertheless, we were sometimes sued by people who alleged that they had sent their work to us, and we had copied our characters from their work.
All artists—whether they paint or sculpt or write or engage in other forms of creativity—are proud of their creative works. They think that they are the only ones capable of thinking up the ideas and concepts behind their creations. As a writer, I understand this creative egotism.
But the truth is that there are very few new ideas in the world. Moreover, ideas cannot be protected. The field of intellectual property law, involving copyrights, trademarks, and patents, was developed to protect specific depictions and inventions, not to protect ideas.
To show infringement of a copyright, the owner of the work must show the infringer copied the owner’s work. An independent creation—one created in a vacuum apart from the plaintiff’s work—cannot violate a plaintiff’s copyright. Typically, the copyright owner must show access by the infringer to the owner’s work and similarity between the original and the allegedly copied works.
“Copying involves a factual question of whether the defendant actually used the plaintiff’s work in order to create his or her own work. It can be proven through direct evidence, such as witness testimony, the defendant’s own admission, or photos or video catching the defendant in the act. More commonly, however, copying is demonstrated, through circumstantial evidence establishing (1) access to the plaintiff’s work and (2) probative similarities between the works. From this evidence, it can be inferred that, given the defendant’s opportunity to copy the plaintiff’s work by having access to it and given certain similarities between the works, it is more likely than not, that the defendant copied the plaintiff’s work. [emphasis added]”
Without a showing that my company had access to the plaintiff’s work, their copyright claim was doomed. Of course, where the plaintiff has published or otherwise made public his or her work, access can be presumed. But where the only allegation of access is that the plaintiff had sent his or her work into a big company, they have to show the work got to the employees who actually created the allegedly infringing product.
The cases against my company that irritated me the most were those in which many different plaintiffs each claimed they had developed the property that they accused us of copying. One of our properties—which was a commercial success—became the subject of five lawsuits. In each case, the claim was that that particular plaintiff had created the work and we had stolen the property from that person.
I wanted to put all the plaintiffs in a room and let them duke it out. I’d let the one that survived sue us, but we shouldn’t have to defend against five different people who all claimed they had independently created the property!
Have you ever been involved in defending multiple claims that could not all be true?