Copyright Infringement and Substantial Similarity

What Constitutes Copyright Infringement?

‘Fair use’ is an affirmative defense to copyright infringement. If a publisher believes that content she wants to publish uses and is substantially similar to third party materials, she must either obtain a clearance or satisfy herself that use is permissible under a competent fair use analysis. Before she evaluates whether the use of third party materials is ‘fair use’, however, there must be infringement!

The two basic requirements for copyright infringement are (i) the accused infringer copying the original (first) work through access, and (ii) the allegedly infringing work being “substantially similar” to the original work.

Copying is proven up by showing that the purported infringer took the necessary steps to reproduce original copyrighted expression in his or her work, with or without intent based on access.[ See, e.g., Paul Goldstein, Goldstein on Copyright § 9.2 and §9.2.1 (3rd Ed., Supp. 2013).] Access is not an issue which courts typically discuss at length. Although the fact of access must be reviewed and confirmed, it’s an element of infringement often met without undue burden.

The issue of substantial similarity is tougher and often grayer. In the infringement context, the question is whether there has been enough of a taking so as to constitute an “improper appropriation” [See, Melville B. Nimmer and David Nimmer, Nimmer on Copyright, 4 §13.03[A] (2014) (“Nimmer”). ] of the claimant’s work – more specifically, the analysis focuses on whether the allegedly infringing work reproduces protected expression from the original work.

Evaluating Substantial Similarity in the Literary Context. Courts and intellectual property lawyers utilize different analyses in order to credibly determine and opine on whether, by reason of substantial similarity between two works, a copyright holder’s exclusive rights are violated. Individual analysis is driven by the media or product at issue.

It is one thing to compare two literary works, different to evaluate audio sampling, and altogether different to compare source and object codes for computer software. Generalizations are also just that. A competent evaluation of whether two works are substantially similar requires a careful, thorough, detailed evaluation of both works. Substantial similarity is a question of detailed fact!

Professors Nimmers articulate two approaches or methods, which apply to the literary context, to help evaluate the existence (or not) of substantial similarity. They are respected and utilized by both the copyright bar and courts adjudicating infringement cases. They don’t answer the question, but rather guide the necessary detailed evaluation. These approaches are known as “comprehensive non-literal similarity” and fragmented literal similarity.”[ See, Nimmer at 4§13.03 [A][1] and [2].]

The essence of comprehensive nonliteral similarity is ascertaining whether or not “the fundamental essence or structure of one work is duplicated in another”[ Id. at 4§13.03 [A][1].]. As an example, there may be similarity in structure, organization, and other protected expression, although not exact or verbatim, and along with that there has been some taking of the claimant’s overall macro work or portion of it.

In contrast, fragmented literal similarity addresses the factual scenario, “[w]here there is virtually, though not necessarily, complete word for word”[ Id. at 4§13.03 [A][2].] replication between the claimant’s and the alleged infringer’s works. As an example, where the infringer has used an offensive quantity of exact words, phrases, sentences, paragraphs, graphics or other protected expression. As to what constitutes the taking of an offensive quantity of protected expression, such quantity might be far less with a highly creative artistic work, than with a more factual, informational or commercial work.[ Id. at 4§13.03 [A][2][a]. The nature of the work at issue is also expressly statutorily articulated as one of several factors when evaluating the fair use of a copyrighted work. 17 U.S.C.A. § 107(2).]

Summary

Prior to evaluating fair use, in the context of prepublication manuscript review or advising as to infringement, one should determine whether the allegedly infringing work is substantially similar to the original (first) work.

Evaluating substantial similarity in the literary context requires a careful review of both works, under the broad approaches of comprehensive nonliteral similarity and fragmented literal similarity. ‘Careful’ means close review and inventorying of each alleged similarity in the two works.

If substantial similarity is deemed to exist, the question then becomes whether the defense of ‘fair use’ under Section 107 of the Copyright Act is applicable.

Jon R. Tandler is an Associate Member of PubWest and practices intellectual property, publishing and business law. He is a partner of Ryley Carlock & Applewhite, Denver, Colorado and Phoenix, Arizona, with email address jtandler@rcalaw.com.

This article comments on a general legal topic and is not legal advice.

References/Citations

1. See, e.g., Paul Goldstein, Goldstein on Copyright § 9.2 and §9.2.1 (3rd Ed., Supp. 2013).
2. See, Melville B. Nimmer and David Nimmer, Nimmer on Copyright, 4 §13.03[A] (2014) (“Nimmer”).
3. See, Nimmer at 4§13.03 [A][1] and [2].
4. Id. at 4§13.03 [A][1].
5. Id. at 4§13.03 [A][2].
6. Id. at 4§13.03 [A][2][a]. The nature of the work at issue is also expressly statutorily articulated as one of several factors when evaluating the fair use of a copyrighted work. 17 U.S.C.A. § 107(2).