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From page 23... ...
23 department's opinion that "the lack of a valid model is not available as a litigation strategy."305 IX.
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24 culties of proof."319 The copyright in a derivative model protects against either the copying or the infringing of the underlying model's original contribution present in a later derivative work.320 3. Rights in a Derivative Model Created by a Designer's Licensee A copyright holder in an underlying model may enter into a license or other agreement with one or more collaborators on a project, whereby, for example, the designer provides a copy of the underlying model and/or controls access to it.
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25 found in the original…."332 When there is an "unauthorized incorporation" of an underlying model into a derivative one, the incorporation is copyright infringement.333 The incorporation violates the derivative rights of the copyright owner in the underlying model.334 Third, it is necessary, however, to separate the original contributions to the model and the original contributions in the infringing derivative. The author of an underlying model has no rights in the original elements contributed by the infringer to make a derivative model.
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26 does not imply infringement; rather, such similarity must be substantial.347 The term substantial similarity is defined as sufficient similarity of a second work to the protected work to support a reasoned inference by an ordinary observer that more probably than not the second work was copied from the copyrighted work. The dominant test for substantial similarity, as elaborated by the Second Circuit, is the "total concept and feel" test.348 For the defendant to prevail when a plaintiff succeeds in making a prima facie case, the defendant must disprove the plaintiff's ownership; show that the defendant was authorized by a license or other agreement to make and use a copy or that the copying amounts to fair use; or demonstrate that the works are not substantially similar.349 Although the use of BIM appears not to have been the subject of many cases, there has been litigation when, for example, a construction company made identical images of an architect's plans.
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27 the scope of copyright protection.362 In Apple Computer, Inc.
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28 words on a computer screen, "the components of that program that provide such a function are not protected by copyright laws."378 C The Effect of the Architectural Works Copyright Protection Act Copyright protection extended to architectural plans379 even prior to the enactment in 1990 of the Architectural Works Copyright Protection Act (AWCPA)
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From page 29... ...
29 [t] o help determine what else might count, we ask "whether the new work merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning or message; [we]
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