Bold News! Copyright Infringement: How Close is Too Close? As Usual, it Depends…

In order for a copyright infringement claim to be brought properly, a number of things must be in place first. Here are the requirements:

  1. The Plaintiff must own a valid copyright (filed with the Library of Congress) in the artistic work
  2. The Defendant copied from the Plaintiff’s artistic work
  3. Plaintiff must show that the Defendant copied the material from the Plaintiff, the Defendant derived the idea from the Plaintiff, and did not come up with it on their own
  4. The Plaintiff must then show that there is a “substantial similarity” between the Plaintiff’s work and the Defendant’s work

This 4th element is where I’ll spend more time today. The Federal Circuits are split on how to assess whether two works are “substantially similar” and I’ll cover each of the tests here so you know generally where you would fall depending on which federal circuit you are in:

  • The “ordinary observer” test
  • The “extrinsic/intrinsic” test
  • The “abstraction/filtration/comparison” test
  • The “intended audience” test​



The 1st, 2nd, 3rd, 5th and 7th Circuits apply the “Ordinary Observer Test” which examines whether an ordinary observer would find the two works to have the same aesthetic appeal  

The 8th, 9th and 11th Circuits applies the “Extrinsic/Intrinsic Test” which first extrinsically examines a list of the elements of the two works and compares the lists to assess any correlation of the elements then examines intrinsically what is the visceral reaction of the lay observer?

The 6th, 10th and District of Columbia Circuits have adopted the “Abstraction/Filtration/Comparison” Test, which was originally created for evaluating computer software, but it has now been applied beyond software. These circuits first via abstraction by the components of the plaintiff’s work at various levels of detail, from general to specific then applying filtration by filtering out uncopyrightable elements and finally comparison by comparing the remaining copyrightable elements to the defendant’s work.

The 4th Circuit uses the “intended” audience test by evaluating the works as if it were a member of the specialized group that is the intended audience for the work

Author: J.D. Houvener, Founding Patent Attorney

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