To prove copying with circumstantial evidence, the plaintiff needs to demonstrate: (a) access to the copyrighted work and (b) substantial similarity between the allegedly infringing work and the copyrighted work.21
Access to the copyrighted work may be shown by demonstrating that the defendant had actual knowledge of the plaintiff's work or had a “reasonable opportunity” to access the plaintiff's work.22 The plaintiff may establish access with circumstantial evidence by showing that a chain of events allowed the defendant to have direct access to the plaintiff's work (i.e., through record company dealings).23
Likewise, the plaintiff may demonstrate with indirect evidence that the defendant had a “reasonable opportunity” to access the work due to widespread public dissemination of the plaintiff's work.24
For cases involving musical compositions, a plaintiff may have more success proving access through widespread dissemination of its work by presenting evidence such as record sales or radio performances.25 Evidence that the plaintiff's work was widely distributed may also support a theory of subconscious infringement.26
Alternatively, access may be inferred without specific evidence if the plaintiff can show that the two works are “strikingly similar.”27 A court will infer access if the plaintiff can demonstrate that the similarities are only achievable through copying, and not by coincidence, independent creation, or use of a prior common source, which are defenses to copyright infringement.28
