Semi-OT: Congress about to limit artists' copyright rights

[Hal Duston]

On Sat, May 31, 2008 at 10:29:18PM -0700, Leo Mauler wrote:
> --- On Sat, 5/31/08, Hal Duston <hald at kc.rr.com> wrote:
> 
> > On Sat, May 31, 2008 at 09:02:43PM -0700, Leo Mauler wrote:
> > > --- On Sat, 5/31/08, Hal Duston <hald at kc.rr.com>
> > 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