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Bare Corporate Receipt Doctrine Less Help to Copyright Plaintiffs
The first line of defense in most copyright infringement actions revolves around the question of “access” ' namely, whether the defendant had a reasonable possibility of viewing or hearing the plaintiff's work such that the defendant could have copied it illegally. Absent some direct proof that the defendant actually copied the plaintiff's work ' evidence that typically is not present ' a plaintiff will attempt to prove such copying indirectly by establishing that a defendant had access to the plaintiff's work and that the defendant's work is “substantially similar” to the plaintiff's.
The U.S. Court of Appeals for the Second Circuit has made it more difficult for plaintiffs to prove access. Specifically, in the Second Circuit's view, a company's “bare corporate receipt” of a plaintiff's work is insufficient proof of access.
In the entertainment arena, copyright plaintiffs alleging infringement of their creative works by large media companies often seek to establish access simply by proving that they sent an unsolicited copy of their work ' eg, a demonstration tape of a song, a written treatment for a TV show or a film screenplay ' to the media company that released the allegedly infringing work. Occasionally, courts have accepted such arguments under the legal doctrine of bare corporate receipt ' a spurious doctrine that enables a plaintiff to create a jury question on access simply by proving that someone at the company that released the allegedly infringing work received the plaintiff's work. The Second Circuit has held instead that in order to create a jury question on access, a plaintiff must have evidence that the plaintiff's work was conveyed to the artists who created the allegedly infringing work. If not, the court has made clear that summary judgment is required notwithstanding receipt of the plaintiff's work by the defendant corporation.
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