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How does one determine whether there has been an infringement of copyright for visual artwork, paintings, photographs, etc.

Substantial similarity: The court will compare the original work with the allegedly infringing work to determine if there is substantial similarity between the two. This means that the allegedly infringing work must be substantially similar to the original work in terms of its expression, not just its idea.

Originality: The court will consider whether the original work is original enough to warrant copyright protection. This means that the work must have a minimum degree of creativity and must not be a straightforward copy of another work.

Copyrightability: The court will consider whether the work is capable of being copyrighted. Not all works can be copyrighted, such as ideas, procedures, or facts.

Fair use: The court will consider whether the allegedly infringing work falls under fair use. Fair use is a defense to copyright infringement that permits the unauthorized use of copyright-protected works in certain circumstances, such as criticism, commentary, news reporting, teaching, scholarship, or research.

Permission: The court will consider whether the alleged infringer had permission from the copyright owner to use the work. If the alleged infringer has a valid license or permission from the copyright owner, then there is no infringement.

In summary, determining whether there has been an infringement of copyright for visual artwork, paintings, photographs, etc. involves a complex analysis of various factors, including substantial similarity, originality, copyrightability, fair use, and permission. Ultimately, it is up to the courts to make the final determination of whether there has been an infringement of copyright.

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