Copyright – Originality

Modern copyright law protects works against copying; issuing copies to the public; performing, playing, showing or communicating to the public; or the making of adaptations.


Originality versus Novelty

For a work to attract copyright protection, it must be original.  This does not mean that the work is new.  Rather that it originated from the author who displayed reasonable independent labour, skill and judgment to create the work.  In other words, the author didn’t copy the work from another source.


Copyright Infringement and Independent Creation

It is possible for two authors to independently create very similar works.  Provided they did not copy from either each other (or from someone else) then there would be no infringement of copyright.

For copyright infringement to occur, the following need to be satisfied:

  1. There needs to be a valid copyright and ownership of it
  2. The alleged infringing work needs to show a level of objective and striking similarity to the copyright-protected work – a clear resemblance
  3. There needs to be a causal connection between the two works – facts that suggest that copying of the copyright-protected work is likely to have occurred in the creation of the infringing work
  4. There should be copying of a “substantial part” of the copyright-protected work – this is based on quality rather than quantity, as well as the relative importance of the copied elements to the copyright-protected work

Any evidence, or that lack of, to support an independent pathway of creation will be important in deciding a case of copyright infringement.


A Recent Example: Iron Man 3

For the past three years, Marvel Entertainment and Horizon Comics Productions have been engaged in a copyright infringement lawsuit over the design for Marvel’s Iron Man 3 movie poster.

Horizon asserted that Marvel had copied an image of their character Caliban (from their comic book series “Radix”) shown in a crouched kneeling position, and had used it to depict Robert Downey Jr. as Iron Man in the same pose.  They claimed that six Marvel employees were aware of the Horizon works and had influenced those who had designed the Iron Man 3 poster.

At trial, Marvel were able to provide evidence that their Iron Man 3 poster had been independently designed from photographs taken at photo shoot with Robert Downey Jr.

Horizon, however, did not produce evidence to the Court’s satisfaction to refute this.  Neither were they able to demonstrate a causal connection to copying, including evidence that the employees concerned had seen the Caliban drawing or had been involved in designing the ‘Iron Man 3’ poster.

On 15th July, the U.S. District Court ruled in favour of Marvel.

Alistair Curson



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