The first step of the infringement analysis, copying-in-fact, includes determining that the defendant actually copied the work as a factual matter.See Yankee Candle Co. v. Bridgewater Candle Co., 259 F.3d 25, 33 (1st Cir. 2001). Because direct evidence of copying is rare, courts tend to permit evidence showing that (1) the defendant had access to the copyrighted work and so had the opportunity to copy the work and (2) a sufficient degree of similarity exists between the two works to rise to an inference of actual copying.See Johnson v. Gordon, 409 F.3d 12, 18 (1st Cir. 2005). For instance, in T-Peg, Inc. v. Vermont Timber Work, Inc., the court found that a home builder had access to a contractor's plans because the contractor had supplied the builder with plans such that "both the plaintiff and the defendant had possession of plaintiff's work".T-Peg, Inc., 459 F.3d at 111. The court likewise found that there was a sufficient degree of similarity. On the other hand, in Shine v. Childs, the architect who designed One World Trade Center was found not to have copied an architecture student's preliminary design because although the architect had access to the work, the idea of a twisting tower with rectangular bases and parallels sides was "by no means unique" such that there was no evidence that the architect could only have thought of the design by viewing the architecture student's work.Shine, 382 F. Supp. 2d at 612.
