Copyrights and substantial similarity: an overview

Copyright law attempts to safeguard creative works that are considered to be the intellectual property of the creator, particularly in the field of literature, music, fine art, entertainment, films, and artist's performances. The essence of copyright law pertains to negative rights that are created to restrict the unlawful copying of such creative works. In order to safeguard their original works, creators often deploy legal as well as technological measure against infringers. Most often, copyright infringement related disputes are adjudicated by Courts through legal procedures such as injunctions, notices and take down processes. In order to adjudicate upon copyright infringement matters, over the years, Courts, global copyright regimes, conventions, treaties and judges have propounded extensive tests that would determine the level of infringement in a work. Apart from tests, several standards and metrics are laid down by courts to determine if a particular work has been unlawfully reproduced without the original creator's permission. Additionally, in order to examine the extent of copying in a copyright infringement lawsuit, Courts also refer to several jurisprudential concepts. Substantial similarity refers to one such metric that is used to analyze if a defendant has infringed upon the reproduction rights of a copyrighted work. Its origin can be traced back to US copyright laws. Under substantial similarity, there exists several tests that are applied by Courts to adjudicate upon copyright infringement matters. Moreover, Courts also rely on several analyses and factors such as striking similarity and misappropriation to examine infringed works. Some of the tests under the substantial similarity standard includes- the total concept and feel test, pattern test and the Abstraction-Filtration-Comparison test.

Striking similarity and misappropriation

An infringed work is considered to be strikingly similar to the original work when the similarities that exist between the two works are quite extensive and in detail that is it highly improbable that both the works were created independently. When two works are strikingly similar, Courts often opine that the infringer, probably, had access to the original work. In order to determine if two works are strikingly similar, several factors are taken into consideration. For one, the uniqueness, intricacy or complexity of similar sections from both the works are closely examined. Secondly, unexpected or idiosyncratic elements are brought in to determine if two works are strikingly similar. Courts may examine if the original creator's work carries any unexpected or idiosyncratic elements that was also repeated in the infringing work. Thirdly, Courts may examine if any errors from the original works are replicated in the infringing works. Fourthly, it is analyzed if fictitious elements (such as fake maps, names or places) that are present in the original work, are also duplicated in the infringing work. Lastly, Courts may examine if the infringer has attempted to add any unrefined or unworked elements into the infringing work in order to appear dissimilar to the original work.

On the other hand, misappropriation can be defined as the unlawful and improper use of copyrighted property for purposes than that for which intended. Misappropriation is a common law notion that falls under the umbrella of unfair competition. The misappropriation theory aims to "protect anything of value that isn't otherwise protected by patent or copyright law, trade secret law, violation of confidential relationship legislation, or some other kind of unfair competition." The following are the common components of a misrepresentation claim as per US laws: 1) the plaintiff's large investment of time, talent, or money in producing some property; 2) the defendant's appropriation and use of that property at little or no expense; 3) the appropriation and use done without the plaintiff's authority or agreement; and 4) proof of the plaintiff's harm as a result of the defendant's actions.

Exceptions: fair use and its relationship with substantial similarity

Fair use is one of the most common defenses used in cases wherein substantial similarities between two works are determined. Upon claiming fair use, a person admits that the copyrighted work has been intentionally and knowingly used for purposes that are non-commercial and justifiable. The fair use doctrine permits the usage of copyrighted works, without obtaining prior permission or licenses from the copyright owner, for purposes such as education, parodies, commentary, news reports or research. Using the fair use defense, one can claim that the copying of copyrighted work or the substantially similarity between both the works (original and the infringed works) are justified considering the fact that it was used for a purpose that falls under the ambit of fair use.

Tests under the concept of substantial similarity

Pattern test

The pattern test was first propounded by Zechariah Chafee, a professor at the Columbia University. The pattern test is often used to determine the levels of similarity between the copyrighted work and the infringed work, especially in literary and fictional works. As per the pattern test, elements of plots from both the works are compared to see if there are any similarities which overlap with each other. Courts may adjudicate that infringement has occurred if there is a similarity in the "pattern" pertaining to the elements of the plot and characters in both the works.

Abstraction-Filtration-Comparison test

Piracy and copyright infringement is an issue that plagues the software domain even today. The abstraction-filtration-comparison test was devised to examine the similarity between copyrighted and infringed computer programs. As per the test, several elements from both the works are extracted and compared with each other on an abstract level. Thus, the substantial similarity between the elements of both the computer programs are analyzed through comparison. The abstraction-filtration-comparison test was first applied to the case of Computer Associates International Inc. v. Altai Inc.

Total concept and feel test

The total concept and feel test examines the subjective observations of a jury or outsiders. These observations often tests if the total concept and feel of a work is similar to that of the original work. This test is also referred to as the 'lay observers test'. Therefore, the basis of the test is to determine if an average lay observed can identify that the infringed work has been appropriated from the original work. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.