In order to have a claim for copyright infringement, the plaintiff must show: (1) that they have a valid copyright and (2) that the original elements of their work were copied, without their authorization. To file a claim under the Federal Copyright Act, federal registration must first be acquired. A plaintiff can satisfy the first element, a valid copyright, by showing that the work is original and that they are the author of the work or by producing their federal copyright certificate if they already federally registered their copyright.
Unauthorized copying can be shown with direct evidence of copying or indirect evidence of copying. When using indirect evidence of copying the plaintiff must show that the defendant had access to the plaintiff’s work and that the works are substantially similar. Substantial similarity may be shown by lay witness testimony or expert witness testimony. Additionally, the aspects of the works that are substantially similar must be protectable elements of the work. The author’s express of their idea is protectable but the actual idea or theme itself is not protectable.