Does it matter if the similarities are a coincidence?

[breakaway]

If it is quite apparent that the similarities are just an unintentional coincidence, does that matter in court?

 

[The Occultist]

Are you talking about trademarks or copyrights?

 

[breakaway]

copyrights!

 

[quincy]

For trademarks, unintentional similarities could still lead to confusion in the marketplace. So, coincidence or not, one trademark holder could sue another for infringement and the court probably wouldn't care that the infringement was unintentional and/or coincidence.

For copyrights, unintentional and coincidental similarities could have a bearing on a court's ruling of infringement in some cases.

It is possible for two authors to create eerily similar works totally independent of each other. However, if one author can show that the works are too similar to be coincidence - even if it is, in reality, just coincidence that makes them so - he could still win an infringement suit. Often just one sentence worded exactly the same can make mere coincidence unlikely.

Expert witnesses are sometimes called in on infringement cases, more so perhaps with music infringement than with literary or artistic infringement. With musical compositions, the experts will often go over the songs note by note. Although "My Sweet Lord" by George Harrison sounds nothing like "He's So Fine" by the Chiffons, runs of notes were found by experts, and by the court, to be identical in both, and Harrison was found guilty of infringement. The similarities were unintentional, perhaps coincidental as Harrison claimed, but still infringement.

Sometimes wrongful appropriation of another's copyrighted work can be shown to the court by proving the "infringer" had access to the original work. This was true in the Harrison case, for instance.

Then again, sometimes works will have definite similarities, but the similarities are in the facts or ideas only, and not in how these facts and ideas are expressed. If there are common sources used, for instance, there may be works that are strikingly similar but not infringing. These similarities may arise when the material used is from public domain sources or folk custom, or when there is a large use of contemporary or historical facts.
What would probably be unintentional and coincidental in a situation like this would be if the books came out at the same time. But, even if the subject matter is the same and the books use the same facts or sources, a court would not find it infringement if the subject matter was expressed or presented in different ways.

So, to answer your question briefly, no. Even if it is apparent that the similarities are unintentional coincidence, the court would consider other factors in determining whether these unintentional and coincidental similarities were infringement, both for trademarks and for copyrights.

 

[breakaway]

Thanks for the reply.

But in terms of punishment by the court, do they care if it was intentional?

And what is usually the punishment for copyright infringement anyway?
Is it (a) to simply stop producing it in the future, (b) to compensate for lost revenue, or (c) is it to downright punish the person by giving them a huge fine?

 

[quincy]

Like I said, if the "defendant" claims any similarities were unintentional or coincidental, it could have a bearing on a court's ruling in some infringement cases.

What a Plaintiff, the one suing for infringement, must prove to the court is that, first, copying occurred, and this is generally done by showing substantial similarities between the two works. The infringement claim is bolstered when the Plaintiff can show that the Defendant had access to the copyrighted work.

The one being sued for infringement can try to prove to the court that his/her work was independently created and any similarities are mere coincidence and completely unintentional. Fair use is another defense to infringement - but that would not be used if the defendant is trying to show the work was independently created. And the other defense a defendant could use is to show he/she had permission to use the copyrighted work as a basis for his own work. This is hard to prove when you are being sued for infringement, however.

As for punishments, all of the ones you listed are possibilities - alone or in combination. There can be an injunction issued, to stop all sales and distribution of the infringing work. There can be a settlement worked out. There can be a trial.

Money damages are generally part of any infringement action. These can include any monetary damages incurred as a result of the sale of the infringing work - actual losses to the sale of the original and any profits realized by the sale of the infringing work.

If the copyrighted work is registered, the copyright owner may seek to recover statutory damages, which eliminates any need for the owner to show profits and losses. If the work was registered, attorney fees and court costs can also be awarded.

Amounts awarded, therefore, can vary in any infringement action. The statutory awards are no less than $750 or more than $30,000 for each work infringed. If the court finds there was willful infringement (where the defendant knew he was infringing, for instance because he had been told to stop), the court can increase the award of statutory damages to up to $150,000.

If the defendant is not shown to have been aware he was infringing, the court can also reduce damages to not less than $200 - for instance in some fair use defense cases, where the defendant can show that there was a reasonable belief that the use was fair, ie. an educational use or nonprofit use.

Infringement can also be "criminal" infringement and there are fines for these dishonest copyright infractions.