Independent creation defense to copyright infringement in the United States

Copyright law in the Untied States is intended to reward creators for their hard work. When an author writes down their story on paper, they are automatically granted a copyright on that story. Copyright grants the creator of a work the exclusive right to copy, distribute, display, perform the work and make derivative works. If someone other than the copyright owner attempts to exercise one of these exclusive rights that can be considered copyright infringement. A copyright owner can sue to stop copyright infringement with an injunction and to recover monetary damages for infringement which has occurred.

The exclusive rights granted by copyright law to an author are limited to the work created by the author. Copyright does not extend to ideas, processes, or concepts which are in the work. Also copyright does not extend beyond the creators expression of a work. If an artist paints a picture of a tree, other artists are still free to create their own paintings of trees. If a musician writes a song about love, other musicians are still allowed to write songs about love.

Hypothetically a creator can create a work which is identical to an existing work without infringing on the copyright of the first work. This is known as independent creation. Independent creation in copyright law is not a defense to copyright law, it is a denial of copying altogether.

The distinction between a defense and a denial turns on which party has the burden of proof at trial. For instance, an affirmative defense to copyright infringement is fair use. The defendant must plead and present evidence at trial that their use of a copyrighted work qualifies as a fair use, the plaintiff can then present evidence to rebut the defense. When a defendant claims that they independently created a work, they are denying that a fundamental element of the plaintiff’s complaint has occurred. Therefore the burden of proof remains with the plaintiff to show that copying has occurred, which the defendant can then rebut with evidence that copying did not occur.

Because the United States is a patchwork of courts which can look at the same legal argument and come to different conclusions, there is some differences in how independent creation is treated in the different circuits.

In Moore v. Kulicke & Soffa Industries, Inc., 318 F.3d 561 (3rd 2003) the Court of Appeals for the Third Circuit held that in a suit for copyright infringement the plaintiff must prove that his copyrighted composition has been copied by the defendant. The plaintiff may create an inference of copying by establishing access to the copyrighted work by the defendant and similarity or identity between disputed works. The defendant can rebut this inference by showing they created their work first.

Compare that with Repp v. Lloyd Webber, 132 F.3d 882 (2nd Cir. 1997) where the Court of Appeals for the Second Circuit held that actual copying must first be shown, either by direct evidence or by indirect evidence. Indirect evidence includes, access to the copyrighted work, similarities that are probative of copying between the works, and expert testimony. It is only after actual copying is established that one claiming infringement is required to show substantial similarity between the two works.

A defendant that wants to claim they are not liable for copyright infringement because they independently created their work must be mindful of how the burden of proof is shifted and what evidence they must produce to prove their case.

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