Presumption of a derivative link where objective similarity and opportunity to copy. It can be on a subconscious level. Song was exploited, similarity in first 8 bars of song? Court said in theory unconscious copying is enough but difficult. Rebut presumption through proof of independent creation
Designers Guild Ltd v Russell Williams Ltd
Objective similarity - must look more like the result of copying than coincidence. LJ Millet - make a visual comparison not overall similarity. 1. Are the similarities sufficiently close? 2. Numerous or extensive 3. more likely to be result of copying than coincidence. Disregard features that are commonplace. Textile- impressionistic style and flowers on background in both - there were 7 similarities. Access for D and objective similarity
Nova v Mazooma;Mitchellv BBC
Both derived from a common source is evidence of independent creation to rebut
Mitchell v BBC
D's TV carton copied C's character - rejected. 5 eco-rangers, C sent details to D, who produced own, C argued were so similar. Birss: began work before Bounce Bunch were accessible, created some before, shared sources for inspiration.
Francis Day v Bron
No infringement if genuine coincidence
Kleeneze v DRG
Constraints may be experienced in the creation of a work that mean they must be similar, by function. Letter box draught excluders - were similar because constrained by function. 'Balance must be struck between the protection of such interest...this is a case where the plaintiffs have failed to establish copying and and their action accordingly cannot succeed'.