Do the courts care if the infringement was accidental?

[breakaway]

When the courts weigh the decision on copyright infringement, do they care if it was just a coincidence that 2 things happened to be kind of similar? I am doing drawings right now, and there are only so many variations that can be done, sometimes something I draw will sort of inadvertently look like something else.

 

[quincy]

Coincidence has been used as a defense in copyright infringement suits before, and courts will certainly consider coincidence if the evidence presented supports it. If similarities are substantial, however, a court may legitimately infer that the work was not the result of mere coincidence and rule in favor of the original copyright holder.

In 1962, a group called the Chiffons recorded a song called "He's So Fine". Bright Tunes music sued George Harrison, of The Beatles, for copyright infringement years later, after Harrison recorded his song "My Sweet Lord". Bright Tunes claimed Harrison's song had two musical phrases that were identical to the copyrighted "He's So Fine". It may have been a coincidence, or "subconscious copying", as Harrison at the time claimed, but that did not stop the suit. Expert musicologists had to be brought in, on both sides, to argue whether it could be mere coincidence or outright copyright infringement that produced these identical notes. Harrison lost with his "coincidence" defense, however, and Bright Tones wound up collecting a large damages award.

Courts are not required to consider whether there is an "intent to infringe" or not, when deciding an infringement action. The material "copied" (coincidentally or not) does not have to be lengthy or extensive if it is idiosyncratic enough, either. It really boils down to how similar the similarity is.

If the similar work is substantially similar, it constitutes unlawful appropriation. If the person who "coincidentally" created a similar work had access to the copyrighted work prior to creation of their own, then it can often be viewed as less of a coincidence and more of a conscious (or even unconscious or subconscious) infringement. If, however, evidence can support a "coincidental similarity", then courts will consider that a legitimate defense to an infringement suit.

 

[mike_lee]

I've never heard of anyone pursuing a case involving comic type art unless you were redrawing frames to save time. You might draw a figure with a Jughead shaped nose just don't put a king's crown on him. (i.e. simple logical things) As a writer the words I hate to hear the most are "Hey, that sounds like . . ." The fact is people need to pigeon hole things.

 

[quincy]

There have been many copyright infringement suits brought over cartoons. Often the infringement is for an unauthorized use of a copyrighted cartoon, but others are for "similar" cartoon characters that are published.

One interesting infringement suit was brought over the Superman cartoon. A "similar" Superman had a different name, looked different, but was a superhero who worked at a newspaper in disguise. The similarities, however, a court decided, were still not enough to confuse consumers - the one superhero may have reminded people of Superman, but they did not think he was Superman. A similar Mickey Mouse (however an x-rated one) resulted in an infringement suit and, this time, Mickey Mouse won.

There are several cartoons whose characters have round heads (like Charlie Brown) - a round head alone is not enough of a similarity to be infringement. Two characters can even look a lot a like with round heads and big noses and big ears and red hair, but their "attitude" or personalities can be different enough to avoid infringement. Substantial similarities that a court will consider, then, include not only the appearance of the character (unless the character is a uniquely distinct one, like any one of the Simpson's characters) but the way the character presents himself to the public. If you drew a bear, for instance, and the bear looked nothing at all like Yogi Bear, but this bear lived in Jellystone Park and had run-ins with a Park Ranger, it could easily be infringement.

One other area that will trigger an infringement suit is if your cartoon character looks like a trademarked cartoon - for instance, a cartoon that resembles Tony the Tiger or Snap, Crackle and Pop or a Keebler elf. Companies are pretty vigilant when it comes to protecting their trademarks.

So a character with a Jughead-like nose but without a crown could still potentially trigger a copyright infringement suit, if this cartoon had a Jughead like attitude. Originality is the key to copyright infringement avoidance.

 

[breakaway]

Thanks for the insights again Quincy.

One of the most annoying things about drawing is that I can come out with something very creative and then search around stuff on google and tv shows and see something that looks kind of similar, you even mentioned some of the ones in your post. I don't look at it as a hindrance though, I look at it as a challenge to change the character to something even more unique and make it even better.