the assessment of each case on its facts by the introduction of rules formally shifting the burden of proof from plaintiff to defendant at any stage of the trial. Even if there is a very striking similarity between the two works, copying may not be inferred without proof of access in the following circumstances: 27 i. If both plaintiff's and defendant's works are trite or commonplace. ii. If plaintiff fails to establish prior creation. iii. If the identity between the two works may arise from identical functional considerations rather than from copying. iv. Where the defendant offers direct and highly persuasive evidence that access could not have occurred. Where the works in question are non-dramatic, probably more by way of detailed incident and language must be taken before there is substantial copying. Where the works are artistic, and the Court is testing sufficient similarity by appeal to the eye, stress is sometimes laid upon the feeling and artistic character of the plaintiff's work, an idea that can be extended to the screen displays of a computer. Suppose an author creates a work, and subsequently, at a time when he/she does not own the copyright, he/she reproduces it in a second work. Some concession in his/her favor seems called for, in order to allow him/her to continue doing the kind of work at which he/she is proficient. The relation between the two end-products would be considered rather than the relation between the first work and what has been copied from it. The fact that the author made his/her reproduction unconsciously (if he/she can be believed) would probably enhance any claim not to have infringed. What constitutes proof of access Evidence which directly tends to prove either that the defendant viewed the plaintiff's work or had a reasonable opportunity for such a view is admissible to prove access. Thus, from proof that a plaintiff mailed the allegedly infringed material to the defendant's principal office, it may be inferred that the material was in fact received , and the trier of fact may infer therefrom (unless contradictory evidence is to believed) that the persons responsible for defendant's work had prior knowledge of plaintiff's work. 28 Sometimes access may be proved by mere circumstantial evidence. Therefore, unusual speed in the creation of the defendant's work may constitute some evidence that the defendant had access to and used the plaintiff's work, rather than resorting to independent creation. Similarity between the plaintiff's work and other materials created by the defendant which are not the subject of litigation may likewise constitute circumstantial evidence that the defendant had access with respect to his/her creation of the work in issue KNOWLEDGE The Court is not concerned with the knowledge of a reasonable man but is concerned with reasonable inferences to be drawn from a concrete situation as disclosed in the evidence as it affects the particular person whose knowledge is in issue. One must consider the concrete 27
Nimmer, Melville B., Nimmer on Copyright, Vol. 3, Mathew Bender, New York, 1985, at 1315. 28 Nimmer, Melville B., Nimmer on Copyright, Vol. 3, Mathew Bender, New York, 1985, at 1317.
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