A party can move for judgment as a matter of law after the opposing party has presented its case to the court. Motions for summary judgment are made before trial. test.” 7. The Court clarifies that the substantial similarity test requires proof (1) that the incidents occurred under substantially the same circumstances as the incident at issue in the lawsuit and (2) that the incidents were caused by the same or similar defects. Please email us with questions or visit our website for more information. However, the Ninth Circuit subsequently updated the test, and now the extrinsic test focuses on the objective similarities of the works’ ideas and protectable expressions. This … It focuses instead on whether or not there are disputes about material facts that would need to be resolved at trial. Emily Flasz writes an article on the application of the substantial similarity test in copyright infringement cases. The Second Circuit has found expert testimony irrelevant except where the works are highly technical, such as computer software, 13 and has held that the “good eyes and common sense” of a judge is enough to make determinations on substantial similarity at the motion to dismiss stage. This is not the case in every circuit. Substantial Similarity in the Second Circuit. The extrinsic-intrinsic test is a two-part test for substantial similarity used in the Ninth Circuit. Substantial Similarity Test for Computer Programs user, a program appears as visual images and audio sounds that pro-vide an interface with which the user accomplishes a given function or achieves a desired result. The video below is the opening and closing theme from the H.R. In Arnstein v. Porter, a 1946 case that remains good law today, Judge Frank held that the test for substantial similarity “is the response of the ordinary lay hearer.” [FN3] Plaintiff Arnstein, a serial litigant, had accused Cole Porter of stealing his songs. Found inside – Page 2179 7 The usual substantial - similarity test in the third step fails to separate the issue of copying from that of misappropriation or fair use . that the defendant had access to the infringed work and that there is a substantial similarity between the plaintiff's work and the infringing work. What is the Test for “Substantial Similarity”? Compiled by the China National Intellectual Property Administration (CNIPA) with the support of the WIPO China Funds-in-Trust, this book gives students a basic yet comprehensive understanding of IP. Using a question-and-answer format, it ... [n.29] This article focuses on the determination of substantial similarity. note 13. Some circuits adopted the Ninth Circuit’s nomenclature but gave the extrinsic-intrinsic test very different meanings. You will be considered a United States resident for tax purposes if you meet the substantial presence test for the calendar year. 3.Proof of Actionable Copying Substantial similarity can be broken into two basic types: comprehensive nonliteral similarity and fragmented literal similarity. The idea/expression dichotomy is the principle that copyright protects the original expression of ideas but does not protect the ideas themselves. Mayor McCheese has an oversized cheeseburger-shaped head, a top hat, a diplomat's sash that reads "Mayor," a white boutonniere, and a pair of pince nez glasses. They also use testimony from experts and lay people. If you are a defendant, you do not want a court to find substantial similarity between the works, otherwise you will be found to have committed infringement. If you are a plaintiff, on the other hand, you do want the court to find that there is substantial similarity, which would mean you have won your infringement case. US federal courts apply a “substantial similarity” test to analyze copyright infringement cases. A six-year-old peasant girl is lost and searches for her mother. The story proves an old Russian proverb: We do not love people because they are beautiful, but they seem beautiful to us because we love them. Cir. Substantial similarity is a level of similarity that shows improper appropriation of the plaintiff’s work, one of the requirements for a prima facie infringement claim. The basis for the test is "whether an average lay observer would recognize the alleged copy as having … The Ninth Circuit reviewed the district court’s decision using the “clearly erroneous” standard. The Ninth Circuit always reserves the issue of intrinsic similarity for the jury, if the plaintiff can prove the works are extrinsically similar. This included similarity in “the type of artwork involved, the materials used, the subject matter, and the setting for the subject.” After applying the extrinsic test, the court applied the intrinsic test, which looked at similarity in expressions. Thus, it is likely uncopyrightable due to the merger doctrine. Concept of Substantial Similarity vis-a-vis Copyright Infringement Defendants say that to evaluate substantial similarity, courts generally apply the “ordinary observer test,” which asks “whether an ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard [the] aesthetic appeal as the same.” Peter F. Gaito Architecture, LLC, 602 F.3d at 66 . Artificial Intelligence has evolved to the point where it can be used as a tool to resolve many of the current issues associated with the "substantial similarity" test when it … Found insideThis vision draws from and builds on the 2030 Agenda and the Sustainable Development Goals. It explores who has been left behind in human development progress and why. [n.29] This article focuses on the determination of substantial similarity. v. Mother's Work, Inc., 338 Fed. /Length 2930 This black and white photo shows H.R. This Article also uncovers the irrelevance of willful infringement and the nature of the copyrighted works at issue to case outcomes. Similarly, although the composition of a photograph can be protected by copyright, certain compositions are so conventional that they cannot be protected by copyright. 1 (2014), examining the courts’ application of the test as applied specifically in literary infringement cases. Found inside – Page 236If the traces of substantial similarity found in the extrinsic test are not matched by an equally substantial impression of “intrinsic similarity,” a jury ... v. Mother's Work, Inc., 338 Fed. The video below shows an early McDonaldland commercial, likely the one at issue in this case. For instance, the Second Circuit has rejected it. 2 A New Framework for Assessment, the first volume in the PISA series, provides the conceptual framework on which the PISA 2000 assessment is based. Courts focus on the Substantial Similarity test to determine copyright infringement. Confusion is inevitable because the various substantial similarity tests employed in software copyright cases define a bewildering variety Proof of substantial similarity is satisfied by a two part test of extrinsic similarity and intrinsic similarity. If you require legal advice in your personal capacity, the lawyer referral services operated by the Washtenaw County Bar Association and the State Bar of Michigan may be helpful to you. Exploring the “substantial similarity” test for copyright infringement through the analytical prism of esteemed academics. 8 Trust the People, 113 P.3d at 621; see Warren~ 543 P.2d at 736 (stating that substantial similarity is in part determined by whether "[i]f in the main the legislative act achieves the same general purpose as the initiative"). Summary judgment is available to a party if there are no disputed issues of material fact and the party is entitled to judgment as a matter of law. Works that are not subject to copyright are in the public domain. Motion pictured produced based loosely on a book written about a widely publicized kidnapping. test developed in Warren, 543 P.2d 731). This means that individual words, single colors and short phrases are not protected by copyright. For example, the court noted that, “We do not believe that the ordinary reasonable person, let alone a child, viewing these works will even notice that Pufnstuf is wearing a cummerbund while Mayor McCheese is wearing a diplomat’s sash.” Therefore, the court found that defendants’ commercials were substantially similar to plaintiffs’ TV shows. But consumer groups and internet websites have been waging an effort in states to revive rules. Unfortunately, different courts define the test in different ways. Bridgeport Music, Inc. v. Dimension Films: The Death of the Substantial Similarity Test in Digital Much like the concerns expressed over the British Columbia bill, the Commissioner does not believe the Alberta bill meets the federal law’s substantial similarity test. Comment . This is where substantial similarity comes into play. The use of a cheeseburger for a head gives him the appearance of a wide mouth. endobj Judicial use of multiple discordant tests for substantial similarity therefore creates chaos at the very heart of software copyright in fringement law. ½ä1OE=¾6M³4íÊ¢3¨êS³;Uõ3¾à°tì
Íæ2Úæ¹-öÝÍ°>ñh^ìv~H{Æ~ÊãÖøÕ×~;(M¬@¿XÙIG8æheX¢ ,>mE¢:7ÿ©§#d Recommended Citation. Found inside – Page 2-24In the civil arena courts have established various tests for the substantial similarity finding . The traditional approach is the “ ordinary observer ” or ... They may be used without permission. These may rely one or both of expert or lay observation and may subjectively judge the feel of a work or critically analyze its elements. The extrinsic test is objective in nature and requires the plaintiff to identify specific criteria which it alleges have been copied. Plaintiffs argued that the commercials were substantially similar to their works. Found insideIn this bold and persuasive work Daniel Gervais, one of the world’s leading thinkers on the subject of intellectual property, argues that the international copyright system is in need of a root and branch rethink. 7 Warren, 543 P.2d at 736. Professor Craig revises the substantial similarity test at two levels. The book addresses the difficulties of measuring polygraph accuracy, the usefulness of the technique for aiding interrogation and for deterrence, and includes potential alternativesâ€"such as voice-stress analysis and brain measurement ... This now famous White Paper provides rules for our digital highway.Ó Examines each of the major areas of intellectual property law, focusing primarily on copyright law & its application & effectiveness, especially subject matter & scope of ... Found inside – Page 100This circuit has also eliminated certain The second prong of the Krofft test for portions of works from evaluation under the substantial similarity is ... The Second Circuit rules on substantial similarity as a matter of law at summary judgment if (1) the similarities between the two works are limited to unprotectable elements, or (2) the evidence is so clear that a reasonable jury could only reach one conclusion. Journal of the Patent and Trademark Office Society, 1989. Section III will identify the elements of a copyright infringement cause of action and highlight the critical role of the test for substantial similarity. Found inside – Page 100In short, this note proposes that the single-pronged substantial similarity test applied to computer programs in Whelan Associates, Inc. v. that the defendant had access to the infringed work and that there is a substantial similarity between the plaintiff's work and the infringing work. 69, 70 (2d Cir. Here, in a nutshell, is Professor Craig’s approach: The substantial similarity test has also been refined when plaintiff's work has a considerable amount of unprotectible material. The court disagreed. The defendants suggested that the works should be dissected and then compared. Substantial Presence Test. substantial similarity analysis for the second medium. An expert's test should not be required to be "substantially similar" to be admissible. First, it used the extrinsic test to look at similarity in ideas. When ruling on summary judgment motions, the court does not adjudicate issues of fact. The test asks if an average lay observer would be predisposed to overlook the differences between the works and consider the overall aesthetics of the works the same. This Note will first discuss the complex nature of computer technology and the scope of copyright protection currently available for computer programs. https://guides.lib.umich.edu/substantial-similarity. In applying the ordinary observer test, the majority stressed the overall appearance of the design … Background information, materials, and step-by-step presentations are provided for each activity. In addition, this volume: Presents the evidence for evolution, including how evolution can be observed today. "Modular Decomposition and the Substantial Similarity Test: An Evidentiary approach to Proof of Software Design Piracy," The Computer Lawyer, December 1985. Test Q1 The organizational test is the same for health care organizations as it is for any other IRC 501(c)(3) organization. Definitions of substantial similarity in copyright law, one test (=a way of discovering whether something has a particular quality) for whether there has been copyright infringement (=the breaking of a rule); copyright infringement can be found when the challenged work is similar enough to the protected work This book presents all the publicly available questions from the PISA surveys. Some of these questions were used in the PISA 2000, 2003 and 2006 surveys and others were used in developing and trying out the assessment. /ProcSet [/PDF /Text] When determining whether or not someone has committed copyright infringement, the courts By refusing to acknowledge the aesthetic judgments inherent in determining copyright disputes, American courts have plagued our copyright law with subjective bias and doctrinal confusion. Substantial Similarity Circuit Split Analysis Materials]. It does not do so with precision, but it does offer guidance. This book considers the value of classical music in contemporary society, arguing that it remains distinctive because it works in quite different ways to most of the other music that surrounds us. Second, recent developments in the case law have obfuscated the test. The test is used in the Second Circuit. The “ordinary observer” test is used to assess substantial similarity when the plaintiff’s work is completely original. Drawing the line between noninfringement and infringement, between independent creation and substantial similarity, can be frustratingly difficult. Id. If the copying was indirect, your case becomes a bit more challenging. The courts have pretty well refused to adopt a simple numerical test to resolve this issue, instead relying upon general statements of policy, and sensitivity to the facts of particular cases. Among other articles, he wrote Substantial Similarity in Literary Infringement Cases: A Chart for Turbid Waters, 21 UCLA L. REV. Found insideIn determining whether the works are substantially similar, you must find that similarity ... 2012) (substantial similarity test discussed); TMTV, Corp. v. The inverse ratio rule says that when the showing that defendant had access to plaintiff’s work is very strong, the bar for showing similarity between the works is correspondingly lower. Substantial Similarity. Section IV will set out the current three-way conflict in the circuit courts regarding the appropriate test for substantial similarity in computer program infringement cases and will examine the origins, underlying justifications and practical ramifications of each test. 14 0 obj The factfinder undertakes a purely subjective evaluation of the total concept and feel of the two works. The Abstraction-Filtration-Comparison test (AFC) is a method of identifying substantial similarity for the purposes of applying copyright law. Even though the timing of the motion is different, the legal standard for judging substantial similarity in JMOL is similar to that applied in summary judgment. Recognizing that the comparison of similarity is an intrinsically subjective exercise, where the fact-finder is exercising a moral judgment on the wrongfulness of the defendant’s actions using non-utilitarian variables, the substantial similarity test may take on an entirely different, but more practicable meaning. The objective test involves comparing the protectible constituent musical elements of “Blurred Lines” for substantial similarity with “Got to Give it Up.” The subjective test, on the other hand, asks whether an ordinary person would find the works to be substantially similar. Striking down the ‘substantial similarity test’ The issue of source code infringement and the consequent comparison between the infringing and the infringed code was elaborately discussed for the first time in Whelan Assocs., Inc. … [n.30] The “substantial similarity” test is meant to answer that question. >> /Font << Appx. 8. The traditional approach to identify substantial similarity is the “ Total concept and feel ” test which relies on the visceral response of the ordinary observer or the audience or more appropriately the ‘lay observers’ test. This sentence is one of the only ways of expressing this information in English. The Ninth Circuit's version of the substantial similarity test is particularly difficult to apply to user interfaces for two reasons: First, the application of copy-right law to user interfaces is inherently problematic. "23 Access to the work is rarely at issue, and thus most cases focus on the substantial similarity of the infringing work to the protected work. The extrinsic test is objective in nature and requires the plaintiff to identify specific criteria which it alleges have been copied. see: […] Read more › June 1, 2003 — Comments are Disabled — News Found inside – Page 258For a plaintiff to succeed, it must prove substantial similarity under both of two tests: an analytical 'extrinsic' test, and a more subjective 'intrinsic' ... First, it used the extrinsic test to look at similarity in ideas. Under this test, the court compares the defendant’s work and the plaintiff’s work for similarities in their non-literal elements, such as the original selection, coordination and arrangement of expressions. Substantial similarity is considered to be an appropriate test for infringement.