cmason:
You are correct. But where there is a striking similarity between the copyrighted article and the accused article, access MAY be inferred. See the bit of text below for support. Its from a 3rd Circuit unreported case, but the principle still stands.
I love the case that this one cites from. Dam things . . .
cj
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-2717
Page 6
Copying under Feist may be proven circumstantially by demonstrating (1) that the
defendant had access to the allegedly infringed copyrighted work, and (2) that the allegedly infringing work is substantially similar to the copyrighted work. Dam Things From Denmark v. Russ Berrie and Co., Inc., 290 F.3d 548, 561 (3d Cir. 2002).
To meet the first prong of Dam Things, plaintiffs are not required to prove by direct evidence that defendants gained access to plaintiffs’ work. Instead, access can be inferred by indirect evidence. Boisson v. Banian, Ltd., 273 F.3d 262, 269 (2d Cir. 2001). The indirect evidence must simply show that there is a “reasonable possibility of access.” Gaste v. Kaiserman, 863 F.2d 1061, 1066 (2d Cir. 1988) (citing Ferguson v. National Broadcasting Co., 584 F.2d 111, 113 (5th Cir. 1978), and 3 M. & D. Nimmer, NIMMER ON COPYRIGHT § 13.02[A] (1988)). Thus, where there is a “relationship linking the intermediary and the alleged copier,” access may be inferred. Moore v. Columbia Pictures Indus., Inc., 972 F.2d 939, 942 (8th Cir. 1992) (internal quotations omitted); Towler v.
Sayles, 76 F.3d 579, 582 (4th Cir. 1996).