"The Ninth Circuit's two-part substantial similarity test works by evaluating whether works share similarities that would be apparent to ordinary observers and whether those similarities stem from protected expression rather than unprotected elements like ideas or facts."
"The jury's finding of substantial similarity was nearly impossible to overturn on appeal because appellate courts typically defer to jury determinations on factual matters, particularly when evidence supports the jury's conclusion about similarity between the works in question."
"Concurring opinions calling the intrinsic test legally incoherent argue that the current framework for evaluating substantial similarity lacks clear legal standards and creates confusion about how courts should assess whether copying occurred and whether infringement is actionable."
The Ninth Circuit addressed substantial similarity in a case involving a Kat Von D tattoo based on an iconic Miles Davis photograph. The court applies a two-part test for evaluating copyright infringement, making jury findings on substantial similarity extremely difficult to overturn on appeal. Concurring opinions argue the intrinsic test is legally incoherent, suggesting potential reform. Different circuits analyze substantial similarity using varying approaches. This case represents a potential turning point in copyright law, with implications for how courts will evaluate infringement claims going forward, affecting creators, lawyers, and rights holders.
Read at The IP Law Blog
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