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The Copyright Act
THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and apply provisions of the Copyright Act.
A plaintiff must show "copying" of a protected work to prove copyright infringement. Id. If there is no direct evidence of copying, a plaintiff may prove this element through circumstantial evidence that (1) the defendant had access to the copyrighted work prior to the creation of defendant's work and (2) there is substantial similarity of the general ideas and expression between the copyrighted work and the defendant's work. Sid & Marty Krofft Television Prods., Inc. v. McDonald's Corp., 562 F.2d 1157, 1162 (9th Cir. 1977), superseded on other grounds by 17 U.S.C. § 504(b). Circumstantial evidence of access is generally shown through either evidence of a "chain of events ... between the plaintiff's work and defendants' access to that work" or evidence that "the plaintiff's work has been widely disseminated." Three Boys Music Corp. v. Bolton, 212 F.3d 477, 482 (9th Cir. 2000). If there is no evidence of access, a "striking similarity" between the works may allow an inference of copying. Baxter v. MCA, Inc., 812 F.2d 421, 423 (9th Cir. 1987). Unicolors, Inc. v. Urban Outfitters, Inc., 853 F. 3d 980 (9th Cir. 2017).
In assessing whether particular works are substantially similar, or strikingly similar, this Circuit applies a two-part analysis: the extrinsic test and the intrinsic test. Three Boys Music Corp., 212 F.3d at 485. The extrinsic test requires plaintiffs to show overlap of "concrete elements based on objective criteria," id. while the intrinsic test is subjective and asks "whether the ordinary, reasonable person would find the total concept and feel of the works' to be substantially similar," Pasillas, 927 F.2d at 442 (quoting Krofft, 562 F.2d at 1164). Because "substantial similarity is usually an extremely close issue of fact ... summary judgment has been disfavored in cases involving intellectual property." Litchfield v. Spielberg, 736 F.2d 1352, 1355 (9th Cir. 1984). However, "[a] grant of summary judgment for [the] plaintiff is proper where works are so overwhelmingly identical that the possibility of independent creation is precluded." Twentieth Century-Fox Film Corp. v. MCA, Inc., 715 F.2d 1327, 1330 (9th Cir. 1983). Unicolors, Inc. v. Urban Outfitters, Inc.
A plaintiff must show "copying" of a protected work to prove copyright infringement. Id. If there is no direct evidence of copying, a plaintiff may prove this element through circumstantial evidence that (1) the defendant had access to the copyrighted work prior to the creation of defendant's work and (2) there is substantial similarity of the general ideas and expression between the copyrighted work and the defendant's work. Sid & Marty Krofft Television Prods., Inc. v. McDonald's Corp., 562 F.2d 1157, 1162 (9th Cir. 1977), superseded on other grounds by 17 U.S.C. § 504(b). Circumstantial evidence of access is generally shown through either evidence of a "chain of events ... between the plaintiff's work and defendants' access to that work" or evidence that "the plaintiff's work has been widely disseminated." Three Boys Music Corp. v. Bolton, 212 F.3d 477, 482 (9th Cir. 2000). If there is no evidence of access, a "striking similarity" between the works may allow an inference of copying. Baxter v. MCA, Inc., 812 F.2d 421, 423 (9th Cir. 1987). Unicolors, Inc. v. Urban Outfitters, Inc., 853 F. 3d 980 (9th Cir. 2017).
In assessing whether particular works are substantially similar, or strikingly similar, this Circuit applies a two-part analysis: the extrinsic test and the intrinsic test. Three Boys Music Corp., 212 F.3d at 485. The extrinsic test requires plaintiffs to show overlap of "concrete elements based on objective criteria," id. while the intrinsic test is subjective and asks "whether the ordinary, reasonable person would find the total concept and feel of the works' to be substantially similar," Pasillas, 927 F.2d at 442 (quoting Krofft, 562 F.2d at 1164). Because "substantial similarity is usually an extremely close issue of fact ... summary judgment has been disfavored in cases involving intellectual property." Litchfield v. Spielberg, 736 F.2d 1352, 1355 (9th Cir. 1984). However, "[a] grant of summary judgment for [the] plaintiff is proper where works are so overwhelmingly identical that the possibility of independent creation is precluded." Twentieth Century-Fox Film Corp. v. MCA, Inc., 715 F.2d 1327, 1330 (9th Cir. 1983). Unicolors, Inc. v. Urban Outfitters, Inc.
1149 pages, Kindle Edition
Published February 3, 2018
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