Copyright Infringement And Substantial Similarity Test.
đ 1. Copyright Infringement: Legal Framework
Copyright Law Basis:
Governed primarily by Title 17 of the U.S. Code.
Protects âoriginal works of authorshipâ fixed in a tangible medium (17 U.S.C. § 102).
Elements of Copyright Infringement:
Ownership of a valid copyright
Copying of protected elements (either directly or indirectly)
Copying may be proven either by direct evidence or by circumstantial evidence, often involving access and similarity.
đ 2. Substantial Similarity Test
Purpose:
Courts use the substantial similarity test to determine whether an alleged infringer copied protected elements of a work, not just ideas or general concepts (which are not protected).
Key Principles:
Idea-Expression Dichotomy: Only expression is protected; ideas, facts, or concepts are not (17 U.S.C. § 102(b))
Abstraction-Filtration-Comparison Test: Often used in software and complex works
Ordinary Observer Test: Would an ordinary reasonable person recognize the copy as substantially similar?
đ 3. Leading Case Laws
â Case 1 â Arnstein v. Porter, 154 F.2d 464 (2d Cir. 1946)
Facts:
Plaintiff sued for alleged infringement of musical composition.
Issue:
Whether the alleged infringer copied protected elements of the plaintiffâs work.
Decision:
Court adopted the âordinary observerâ test:
âIf the audience perceives substantial similarities that constitute copying of protected expression, infringement exists.â
Impact:
Foundation for substantial similarity test in music and literature.
â Case 2 â Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930)
Facts:
Play Abie's Irish Rose vs. a similar movie plot.
Issue:
Did the movie infringe plaintiffâs copyrighted play?
Decision:
Court introduced idea-expression dichotomy:
Only the expression of ideas, not the ideas themselves, is protectable.
Minor similarities in plot did not constitute infringement.
Impact:
Established that plot ideas, stock characters, and themes cannot be monopolized.
Laid groundwork for abstraction approach.
â Case 3 â Sid & Marty Krofft Television Productions v. McDonaldâs, 562 F.2d 1157 (9th Cir. 1977)
Facts:
Kroffts alleged McDonaldâs TV ads copied their childrenâs show characters and visual elements.
Issue:
Whether visual, non-verbal elements were substantially similar.
Decision:
Court recognized âtotal concept and feelâ of the work:
Substantial similarity can be assessed holistically, not just scene-by-scene comparison.
Impact:
Expanded substantial similarity beyond literal copying to overall impression and aesthetic.
â Case 4 â Computer Associates Intâl v. Altai, 982 F.2d 693 (2d Cir. 1992)
Facts:
Software code allegedly copied from earlier program.
Issue:
How to apply substantial similarity in software?
Decision:
Developed Abstraction-Filtration-Comparison (AFC) test:
Abstraction: Break program into layers (structure, sequence, code)
Filtration: Remove unprotected elements (ideas, public domain, scènes à faire)
Comparison: Compare remaining protected elements for similarity
Impact:
Set modern standard for software copyright infringement.
Emphasizes protection of expression, not ideas or functionality.
â Case 5 â Three Boys Music Corp. v. Bolton, 212 F.3d 477 (9th Cir. 2000)
Facts:
Alleged infringement in song Love⌠Thy Will Be Done.
Issue:
Whether musical composition was substantially similar to plaintiffâs song.
Decision:
Applied ordinary observer test; considered melody, harmony, rhythm.
Found no infringement: minor similarities insufficient.
Impact:
Reinforced substantial similarity depends on protected elements, not minor resemblance.
â Case 6 â Morris v. Bus Boys, 1994
Facts:
Plaintiff claimed TV show copied his script.
Issue:
Did copying extend to protected expression or just ideas?
Decision:
Court applied extrinsic-intrinsic test:
Extrinsic: Expert analysis of specific elements
Intrinsic: Ordinary observer perspective for total concept and feel
Impact:
Combined expert and lay evaluation for substantial similarity.
Frequently applied in literary, visual, and audiovisual works.
đ 4. Methods Courts Use to Determine Substantial Similarity
| Test | Use Case | Explanation |
|---|---|---|
| Ordinary Observer Test | Music, literature | Would average audience recognize infringement? |
| Extrinsic-Intrinsic Test | Complex works (TV, movies) | Extrinsic: objective comparison; Intrinsic: subjective âfeelâ |
| Abstraction-Filtration-Comparison (AFC) | Software | Break work into levels, filter unprotected elements, compare expression |
| Total Concept and Feel | TV, film | Overall aesthetic and impression, not just literal elements |
đ 5. Key Takeaways
Substantial similarity protects expression, not ideas.
Multiple tests exist: ordinary observer, extrinsic/intrinsic, AFC (software).
Case law shows nuanced approach:
Minor resemblance insufficient (Three Boys Music)
Holistic impression matters (Krofft)
Functional/software elements filtered out (Altai).
Expert testimony often used for complex works.
Courts balance creative freedom vs. protection of authors.
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