Three steps to showing that a defendant improperly reproduced a work in violation of 106(1):
- D was “copying”
- D produced a “copy”
- D improperly appropriated from P’s work
What are the three ways in which a defendant can be said to have copied a work?
- mechanical reproduction
- replication in a different medium
- had copyrighted work in mind when creating a substantially similar embodiment
Can subconscious copying amount to infringement?
Yes
There are four options for the plaintiff to prove that D was copying:
- Direct Evidence
- Access + Probative Similarity
- Striking Similarity
- Common Errors
What is the relationship between access and probative similarity?
+case
Higher showing of access lowers the bar for probative similarity, and vice versa
(Three Boys)
How can you satisfy the access element?
By showing that D had reasonable access (including work’s wide dissemination – Three Boys).
But an inference of access cannot be based on mere speculation.
How might you describe the difference between probative similarity and striking similarity?
Probative similarity: more likely copied than not
Striking similarity: so similar that the only logical conclusion is that D copied P’s work
Can a showing of striking similarity be overcome? How?
Hint: 2 ways
Yes, if D can show lack of access to P’s work, or if D can show that both works could have independently been copied from the public domain
What are the three requirements that something be a “copy”?
- tangible
- fixed (eg, Cablevision)
- intelligible
What are the three types of improper appropriation?
- comprehensive copying
- fragmented literal copying
- comprehensive nonliteral similarity
The “substantial similarity” standard is relevant to evaluating which type of improper appropriation?
comprehensive nonliteral similarity
What are the three requirements of fragmented literal copying?
- the portion copied consists of protected expression
- the portion copied is a “substantial” part of plaintiff’s work (qualitatively or quantitatively, eg kookaburra)
- must be more than de minimis
Does the de minimis standard apply to sound recordings in cases of fragmented literal copying?
No – copying any portion of a sound recording at all is (prima facie) infringement.
Which is the most common type of copying?
Comprehensive nonliteral similarity
When evaluating cases of comprehensive nonliteral similarity, does the proportion of defendant’s work that is non=infringing matter?
No
Learned Hand: “No plagiarist can excuse the wrong by showing how much of his work he did not pirate.” (Sheldon)
What is the test for evaluating whether a case of comprehensive nonliteral similarity is infringing?
substantial similarity
There are three approaches to a substantial similarity analysis. What are they?
- compare the two works in their totality and decide if they’re substantially similar, sometimes from the perspective of the target audience (eg children for McDonald’s ad)
- “more discerning observer” test: don’t filter out the unprotected material, but adopt a more skeptical stance than the hypothetical ordinary observer
- filtration: filter out the unprotected material from the plaintiff’s work before assessing substantial similarity
Of the approaches to the substantial similarity analysis, which is most plaintiff-friendly?
the totality one
Of the approaches to the substantial similarity analysis, which is most defendant-friendly?
the filtration approach
Because of this case, the filtration approach is the dominant one in software cases:
Altai (2d cir)
There are four formulations of the substantial similarity standard – but they all purport to be measuring the same thing (that is, whether the two works are substantially similar). What are they?
- same aesthetic appeal
- apparenta appropriation (eg Steinberg)
- total concept and feel (eg Boisson alphabet quilts)
- extrinsic/intrinsic test (9th cir)
What is the extrinsic/intrinsic test?
extrinsic: objective comparison of specific expressive elements, often with expert testimony
intrinsic: closer to total concept & feel
There are three types of perspectives for evaluating whether works are substantially similar (other than expert opinion of the extrinsic/intrinsic test). What are they?
ordinary observer (default)
audience (rarer)
more discerning observer
