Copycat or Coincidence: Establishing Copyright Infringement in Similar Literary Works


Tuesday, November 03, 2020/04:50AM / By Olumide Osundolire, Chinasa Uwanna, & Oluwatobiloba Ojuri of Banwo & Ighodalo / Header Image Credit: Banwo & Ighodalo



Similarity between two works often implies that one is a copy of the other. However, in the creative world, where different perspectives of an idea can be produced by different authors and each work will be original, similarity without more cannot be conclusive proof of copyright infringement. Accordingly, one of the defences to a claim of copyright infringement is independent creation. This describes when two people independently create the same or substantially similar work. This paper seeks to explain the additional requirements which a claimant in a copyright infringement action must establish, beyond the similarity between his work and the alleged infringing work, in order to establish a case of copyright infringement.



Establishing Copyright Infringement

Essentially, copyright infringement entails the unauthorized use of a copyright protected work. Section 14 of the Copyright Act (the "Act") provides that copyright is infringed by any person who without the license or authorization of the owner of the copyright"... does, or causes any other person to do an act, the ding of which is controlled by copyright..."


The Act, in Section 5, sets out the controlled acts, which are solely reserved for the owner of the copyright. Without due authorization from the owner and outside the parameters of the exceptions provided for under the Act-fair use, educational and academic purposes, public interest, amongst others-the doing of any of the controlled acts in relation to a protected work, such as producing, reproducing, performing or publishing the work or any part of it amongst others, would constitute an infringement of copyright.


To successfully prove infringement of copyright in a work, a claimant (After having established that the work is an original expression, and therefore qualifies for the inherent protection guaranteed by copyright) must establish causal connection between his work and the alleged infringed work as well as a substantial taking by the alleged infringing work from his work 


A. Causal Connection

Here, the claimant must establish a likelihood, on the balance of the evidence available, that the infringing work was copied from his/her work. The copyright work must be the source from which the infringing work is derived. Where the claimant's work precedes  that of the defendant, the defendant had opportunity of access to the claimant's work, and there are strong similarities between both works, there will be a prima facie assumption that the defendant copied the claimant's work1. Prior existence is easy to establish. It is an issue of fact determined by date of publication.


Establishing that the defendant had access to his work may be a bit more tricky. This may be satisfied where, for example, the claimant is able to show that his work-say, a book, song or a movie- was widely read or performed in areas and at times that would make it highly likely that the defendant heard or watched it.


When the claimant can demonstrate access, he will needs to demonstrate sufficient similarity between the defendant's and the claimant's work to make copying more likely than independent creation. The claimant could show that the defendant made a verbatim copy of his entire work or that a part of both works are similar or that both woks have similar aesthetic appeal2


B. Substantial Taking

Having established causal connection, the plaintiff must establish that a substantial part of the copyrighted work was copied by the infringing work. This is often determined by a confirmation of the quality rather than the quantity of what may have been taken. In this regard, it is important to note that copyright law protects the particular original expression of a work and not the underlying idea behind the work. The fact that a latter work bears some similarity to an existing work, does not, without more, amount to an infringement of the copyright.


For instance, the Disney movie, Cinderella, is protected by copyright as an original expression. While authors are advised to steer clear of the character "Cinderella" and specific portions of the story attributable to her unique character, Disney does not have a monopoly over Cinderella-style stories. The story of an orphan mistreated at home, who later finds favour with royalty or rises to some success is a common story/idea in traditional folklore, here at home in Nigeria and in other cultures.


In the same vein, two authors may base their work on the same or similar historical source in the public domain. Reference to this identical source does not necessarily mean that one copied the other. For example, two people taking photographs of Niagara Falls from the same place at the same time of the day and year and in identical weather.3 In the case of Franklin Mint Corp. v. National Wildlife Art Exchange Inc.,4 the plaintiff, the National Wildlife Art Exchange, commissioned a well-known wildlife artist to produce a water colour bird painting of cardinals. The artist transferred the copyright to the plaintiff, who issued limited edition prints of the work. Three years later, the defendant commissioned the same artist to paint a set of four bird pictures, including one of cardinals, and also issued prints of the pictures for sale. The plaintiff sued the defendant for copyright infringement of its cardinal prints. Both versions depicted two cardinals in profile, a male and a female perched one above the other on apple tree branches in blossom. The plaintiff claimed that the painter had copied a substantial part of the earlier work.


The painter replied that he had just taken the idea and that he should not be barred from ever painting pictures of cardinals again. The Court noted thus: "Since copyrights do not protect thematic concepts, the fact that the same subject matter may be present in two paintings does not prove copying or infringement. Indeed, an artist is free to consult the same source for another original painting...."5


So, how then do you establish substantial taking? Usually, Courts consider both the quality and the quantity of work taken, and relatively small parts of a work have been Deemed sufficient to constitute substantial taking where they constitute the heart of the claimant's work and are his original creation. In June 2009, Larrikin Music, who owned the copyright of "Kookaburra," a nursery rhyme originally written by Marion Sinclair in 1932 and which was popular in Australia for decades sued the Australian rock group, Men at Work for infringing its copyright in the nursery rhyme. Men at Work had composed and recorded an equally famous, perhaps more famous song, called "Down Under." The song included a flute riff which appears several times, albeit short, in order to inject some "Australian flavor" into it. The court held the defendants liable for copyright infringement

And here's how the court expressed the relevant standard:



Similarity of a copyrighted prior work with a latter work does not in itself ground a claim for copyright infringement. The claimant must be able to establish a causal connection between both works, and substantial taking. The claimant is not required to prove these elements beyond reasonable doubt. However, given the gravity of the claim, the court would have to be strongly persuaded by the balance of evidence before it, to hold that the defendant indeed infringed the claimant's work.



1.      Plateau Publishing & Anor v. Adophy (1986) 4 NWLR (Pt. 34) 205 pages 615-616

2.     Masterpiece Inv. Ltd v. Worldwide Business Media Ltd (1990 - 1997) 3 L.P.L.R 345

3.     DAVID VAVER, PRINCIPLES OF COPYRIGHT: Cases and Materials WIPO Publication No. 844(A/E/F) at page 137. Accessed at https://   

4.     575 F.2d 62 (U.S.: Court of Appeals, 3rd Cir. 1978)

5.     DAVID VAVER, PRINCIPLES OF COPYRIGHT: Cases and Materials WIPO Publication No. 844(A/E/F) at page 143. Accessed at

6.     Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited [2010] FCA 29, Federal Court (Australia)

7.      Hawkes & Sons (London) Ltd v. Paramount Film Service Ltd [1934] Ch. 593


 Proshare Nigeria Pvt. Ltd.


 Recent Articles By Banwo & Ighodalo

  1. Finance Minister Issues Order Expanding the Goods and Services Exempt from VAT in Nigeria - May 28, 2020
  2. COVID-19 and Commercial Transactions: Some Emerging Legal Issues - March 30, 2020
  3. Patents: The Fitness and Wellness Industry - October 23, 2019
  4. Ownership of Trademarks in Nigeria - October 06, 2019
  5. Companies Operating In Nigeria To Pay 0.005% Net Profit Levy Under The NPTF (Establishment) Act 2018 - September 17, 2019
  6. NAFDAC-Regulated Products Imported Into Nigeria Now To Be Processed On The Nigeria Trade Portal - September 06, 2019
  7. National Identity Management In Nigeria: NIMC and Matters Arising  - Jul 29, 2019
  8. Drilling Rigs Are Not Vessels: Court Of Appeal Pronounces  - Jul 25, 2019
  9. Nigeria: What You Need To Know About The New Minimum Capital Requirement For Insurance  - Jun 03, 2019
  10. National Housing Fund Act 2018: Analysis And Recommendations For Legislative Review  - May 03, 2019



Contact Persons    




Olumide Osundolire (Partner)                                            


Chinasa Uwanna (Senior Associate)


 Oluwatobiloba Ojuri.(Associate)



The Grey Matter Concept is an initiative of the law firm, Banwo & Ighodalo.


DISCLAIMER: This update is for general information purposes only and does not constitute legal advice. If you have any questions or require any assistance or clarification on how these measures could apply to you or your business, please contact the following persons above:[1]

Proshare Nigeria Pvt. Ltd.



Related News

1.      Copyright Protection and Enforcement Rules - Legal Alert

2.     The EU Copyright Directive Is Likely To Stifle Competition And innovation

3.     Copyright Collective Societies' Regulations Revisited - Legal Alert

4.     Court Approves Website Seizure and Anton Piller Order Against Online Copyright Piracy Platform

5.     The Legal Side of Doing Business in Nigeria: Compliance Checklist You Need as a Small Business Owner

6.     Post-No-Debit Orders on the Accounts of Customers: Limitation to the Powers of Regulators and FIs

7.     CBi to host the 8th Annual Christopher Kolade Lecture on Business Integrity on October 29

8.     Training Bonds - How Enforceable Are They Against Employees In Nigeria?

9.     Proshare Nigeria, 633 Others Listed Among Data Protection Compliant Organizations in Nigeria

10.  Board Governance: A Thin Line Between Oversight and Operations

11.   DCSL to host Effective Business Communication Program on September 24, 2020

12.  Works Forming Part of the State of the Art are Ineligible for Protection - A Case Study

13.  CBi Nigeria to Partner MACN in Training 300 Officers on Compliance - Soji Apampa

14.  FAQs on How to Register A Patent In Nigeria

15.  Fraudulent E-transactions Involving Credit and Debit Cards: Who is Liable? - A Case Study

16.  Powers of the Courts to Interfere with the Exercise of CAC's Discretionary Powers - A Case Study

17.  FAQs on How to Register a Not For Profit Organization In Nigeria - Deal HQ


Proshare Nigeria Pvt. Ltd.

Proshare Nigeria Pvt. Ltd.

Related News