A copyright is a type of intellectual property. “Original works of authorship fixed in any tangible medium of expression…from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device” may be the subject of copyright. Dryer v. National Football League, 814 F.3d 938, 942 (8th Cir. 2016); 17 U.S.C. § 102(a). The purpose of copyright law is to establish a “marketable right to the use of one’s expression.” Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 558 (1985). The non-exclusive categories of works available for copyright as enumerated by Congress are: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic work; (5) pictorial, graphic and sculptural works; (6) motion pictures and audiovisual works; (7) sound recordings; and (8) architectural works.
Importantly, copyright protection does not extend to any “idea, procedure, process, system, method of operation, concept, principle or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” 17 U.S.C. § 102(b).
To prevail on a claim of copyright infringement, one must prove (1) ownership of a copyright, (2) access by the alleged infringer and (3) substantial similarity between the copyrighted materials and the infringing materials. Hartman v. Hallmark Cards, Inc., 833 F.2d 117, 120 (8th Cir. 1987). To prove “substantial similarity,” one needs to show (1) similarity in the ideas and (2) similarity in the expression of those ideas.
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