Access
In addition to substantial similarity, a plaintiff must show access in order to prove infringement. Reyher v. Children’s Television Workshop, supra, 533 F.2d at 90; 2 Nimmer § 141.2 at 613. Access is proven when the plaintiff shows that the defendant had an opportunity to view or to copy plaintiff’s work. Arrow Novelty Co. v. Enco National Corp., 393 F.Supp. 157, 160 (S.D.N.Y.), aff’d, 515 F.2d 504 (2 Cir. 1975); Universal Athletic Sales Co. v. Salkeld, 340 F.Supp. 899, 901 (W.D.Pa.1972). In this case, there is no dispute as to defendants’ access to plaintiffs’ work. Indeed, defendants were engaged in negotiations with plaintiffs for licensing of the works even while preparing the McDonaldland commercials.
No amount of proof of access will suffice to show copying if there are no similarities. Williams v. Kaag Manufacturers, Inc., supra, 338 F.2d at 951; Arnstein v. Porter, supra, 154 F.2d at 468. This is not to say, however, that where clear and convincing evidence of access is presented, the quantum of proof required to show substantial similarity may not be lower than when access is shown merely by a preponderance of the evidence. As Professor Nimmer has observed:
“[C]lear and convincing evidence of access will not avoid the necessity of also proving substantial similarity since access without similarity cannot create an inference of copying. However, this so-called ‘Inverse Ratio Rule’ … would seem to have some limited validity. That is, since a very high degree of similarity is required in order to dispense with proof of access, it must logically follow that where proof of access is offered, the required degree of similarity may be somewhat less than would be necessary in the absence of such proof.” 2 Nimmer § 143.4 at 634.
Accord, Fink v. Goodson-Todman Enterprises, Ltd., 9 Cal.App.3d 996, 1013, 88 Cal.Rptr. 679 (1970). We agree. But see Arc Music Corp. v. Lee, 296 F.2d 186 (2 Cir. 1961).
In this case, representatives of Needham actually visited the Kroffts’ headquarters in Los Angeles to discuss the engineering and design work necessary to produce the McDonaldland commercials. They did this after they had been awarded the contract by McDonald’s and apparently with no intention to work with the Kroffts. We believe that this degree of access justifies a lower standard of proof to show substantial similarity. Since the subjective test applies, it is impossible to quantify this standard. But there is no question it is met here.
II. DAMAGES
Awarding Damages
Section 101(b), 17 U.S.C., provides that a copyright infringer shall be liable as follows:
“(b) Damages and profits; amount; other remedies.
To pay to the copyright proprietor such damages as the copyright proprietor may have suffered due to the infringement, as well as all the profits which the infringer shall have made from such infringement, and in proving profits the plaintiff shall be required to prove sales only, and the defendant shall be required to prove every element of cost which he claims….”
Thus, a court in making an award for infringement must determine both actual damages suffered by a plaintiff and profits from the infringement made by defendant.
While there is disagreement as to whether both damages and profits are to be included in the award, an issue we will take up shortly, there is agreement that a successful plaintiff is entitled to at least the greater of damages or profits. See Universal Pictures Co. v. Harold Lloyd Corp., 162 F.2d 354, 375–77 (9 Cir. 1947); L & L White Metal Casting Corp. v. Joseph, 387 F.Supp.
