Independent creation -- defendant's creation of its work without copying plaintiff's -- hearkens back at least to the English case of Roworth v. Wilkes, 1 Campbell 94, 98 (1807) and is a cornerstone of copyright law, exonerating the independent creator from all liability. Without the defense, those who didn't copy would be infringers nevertheless. In the area of popular music and creatively-challenged works, where similarities are more likely to arise from the nature of the subject matter, independent creation prevents copyrights from becoming patents.
Surprisingly, the 20th century began in the United States on the wrong foot with the Second Circuit's affirmance of an early Learned Hand district court opinion holding that independent creation was not a defense to an infringement claim. Hein v. Harris, 175 F. 875 (S.D.N.Y.), aff'd, 183 F.2d 107 (2d Cir. 1910)(This case along with discussion of the dispute and musical samples is featured on the Columbia University Law School Arthur W. Diamond Law Library Music Plagiarism Project's website. I thank Timothy Phillips for pointing the site out to me). Hand subsequently thought better of the question in Fred Fisher, Inc. v. Dillingham, 298 F. 145 (S.D.N.Y. 1924), and in Arnstein v. Edward B. Marks Music Corp., 82 F.2d 275 (2d Cir. 1936), court of appeals Judge Hand expressly disavowed Hein because it was "contrary to the very foundation of copyright law, and was plainly an inadvertence which we now take this occasion to correct." In that same year, in Sheldon v. MGM Pictures Corp., 81 F.2d 49, 54 (2d Cir. 1936), Hand had already foreshadowed Arnstein when he famously wrote "[I]f by some magic a man who had never known it were to compose anew Keats's 'Ode on a Grecian Urn,' he would be an 'author,' and if he copyrighted it, others might not copy that poem, though they might of course copy Keats's."
The principle being well-established now is not, unfortunately, a guarantee that it cannot be undermined. One way independent creation is threatened is procedural, the misdescription of it as an affirmative defense. It is not; it is instead a denial of copying. The difference is significant. Once plaintiff has made out a prima facie case, defendant may interpose an affirmative defense for which defendant bears the burden of production and persuasion. By contrast, where defendant denies an element of plaintiff's prima facie case, the burden of persuasion remains with plaintiff, although the burden of production may or may not shift as the case proceeds. Independent creation is a denial of a central element of plaintiff's prima facie case, copying. Plaintiff always bears the burden of persuasion on copying and initially bears the burden of production. The best discussion of these points (including copyright) is in a Third Circuit trade secrets case, Moore v. Kulicke & Soffa Industries, Inc., 318 F.3d 561, 573-574 (3d Cir. 2003).
The First, Fourth, Sixth, Seventh, Ninth, and Eleventh Circuits get this point right. Consistent with its historical problems with the doctrine, some panels of the Second haven't, Procter & Gamble Co. v. Colgate-Palmolive Co., 199 F.3d 74, 77 (2d Cir. 1999); Repp v. Webber, 132 F.3d 882, 889 (2d Cir. 1997), 1999 U.S. App. LEXIS 27393 (2d Cir. Oct. 27, 1999). This last case also raises the second attack on independent creation, the striking similarity doctrine, which will be the subject of Thursday's posting. [If Grokster is handed down Thursday, that case will be featured as Friday's posting].