Substantial Similarity

Definition

Substantial similarity is a legal concept in intellectual property law that examines whether an allegedly infringing work is sufficiently similar to the original copyrighted work to constitute copyright infringement. It is a critical component in determining if there has been a violation of the exclusive rights granted to the copyright holder.

5 Must Know Facts For Your Next Test

1. Substantial similarity is assessed by comparing the allegedly infringing work to the original copyrighted work, considering both the quantitative and qualitative aspects of the similarities.
2. The test for substantial similarity involves an extrinsic analysis, which examines the objective, factual similarities between the works, and an intrinsic analysis, which considers the subjective, emotional response of the ordinary reasonable person.
3. Factors considered in the substantial similarity analysis include the degree of similarity in the expression of ideas, the amount of the copyrighted work used, the importance of the copied material to the overall work, and the effect of the use on the potential market for the copyrighted work.
4. Independent creation is a defense to copyright infringement, where the defendant can show that the allegedly infringing work was created without access to the copyrighted work and without copying.
5. Substantial similarity is a question of fact, and the determination is made on a case-by-case basis, considering the unique circumstances and the specific works involved.

Review Questions

• Explain the purpose and significance of the substantial similarity analysis in determining copyright infringement.
  • The substantial similarity analysis is a critical component in determining whether an allegedly infringing work has violated the exclusive rights of the copyright holder. It examines the degree of similarity between the two works, both quantitatively and qualitatively, to assess whether the alleged infringer has copied a substantial portion of the original copyrighted work. This analysis is essential in distinguishing between permissible independent creation and unlawful copying, as the presence of substantial similarity can indicate that the defendant had access to the copyrighted work and improperly appropriated its expression.
• Describe the two-part test for substantial similarity, including the extrinsic and intrinsic analyses.
  • The test for substantial similarity involves a two-part analysis. The first part is the extrinsic analysis, which focuses on the objective, factual similarities between the works. This examines elements such as the degree of similarity in the expression of ideas, the amount of the copyrighted work used, and the importance of the copied material to the overall work. The second part is the intrinsic analysis, which considers the subjective, emotional response of the ordinary reasonable person. This assessment looks at whether the allegedly infringing work has appropriated the 'total concept and feel' of the original copyrighted work, capturing the subjective essence and creative expression of the original.
• Discuss the role of access and independent creation in the substantial similarity analysis, and how these factors can impact the determination of copyright infringement.
  • Access and independent creation are important considerations in the substantial similarity analysis. Access refers to the plaintiff's ability to demonstrate that the defendant had a reasonable opportunity to view or copy the copyrighted work. This is a necessary element in proving substantial similarity, as it establishes the potential for the defendant to have copied the original work. However, the defendant can raise the defense of independent creation, where they show that the allegedly infringing work was created without access to the copyrighted work and without copying. In such cases, even if there are substantial similarities between the two works, the defendant may not be liable for copyright infringement. The analysis of access and independent creation is crucial in distinguishing lawful independent creation from unlawful copying, which is the core purpose of the substantial similarity test.

Related terms

Copyright Infringement: Copyright infringement occurs when a person or entity uses a copyrighted work without the permission of the copyright holder, violating the exclusive rights granted by the copyright.

Originality: Originality is a requirement for copyright protection, where the work must be the product of the author's independent creation and not copied from other sources.

Access: Access refers to the plaintiff's ability to show that the defendant had a reasonable opportunity to view or copy the copyrighted work, which is a necessary element in proving substantial similarity.