Intellectual Properties and the Protection of Fictional Characters: Copyright, Trademark, or Unfair Competition?

By Dorothy J. Howell | Go to book overview

2
Copyright Protection in
the Courts: The Elements
of an Infringement Action

PRINCIPLES Of COPYRIGHT PROTECTION

Legal cases concerning copyright reveal that copyright infringement first requires the existence of an original work both subject to copyright and duly copyrighted. The content of the work must be of a nature generally recognized as a property subject to copyright and, more specifically, must be an expression expanding upon the underlying idea. Infringement involves an unauthorized taking of the expression by which the idea was conveyed in the original work. The mere taking of an idea is never sufficient to support an infringement action.

The most obvious infringement is outright plagiarism--direct copying--of the original expression. Most often, however, so obvious an appropriation cannot be demonstrated. Instead, infringement must be inferred from a showing of the defendant's access to the plaintiffs work and of substantial similarity in the expression of the two works.

As a preliminary matter, on one hand, certain categories of works are in the public domain ab initio; e.g., facts, especially historical facts. On the other hand, the allegedly infringing

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