Concept of substantial similarity in copyright infringement cases

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Copyright- the exclusive and assignable legal right, given to the originator for a fixed number of years, to print, publish, perform, film, or record literary, artistic, or musical material.

Infringement- the action of breaking the terms of a law, agreement, etc.; violation. Plagiarist-the action of breaking the terms of a law, agreement, etc.; violation.

Testimony- the statement or declaration of a witness under oath or affirmation, usually in court.

Expressions- the manner or form in which a thing is expressed in words; wording; phrasing


Copyright law comprises legal principles and rules envisaging the protection of those who produced intellectual works in the field of literature, music and fine arts including photographs, films and performance of artists. The principle objective of Copyright law is to protect the author’s original work from being reproduced in an un-lawful manner.

Under copyright law, substantial similarity refers to a strong resemblance between a copyrighted work and an alleged infringement. Thereby, it creates an inference of unauthorized copying. The standard for substantial similarity is whether an ordinary person would conclude that the alleged infringement has appropriated nontrivial amounts of the copyrighted work’s expression. Copyright infringement is violation of exclusive rights of the copyright holder, the unauthorized or prohibited use of works under copyright such as the right to reproduce or perform the copyrighted work, or to make derivative works. To establish copyright infringement in court of law, a copyright owner must establish proof of copyright ownership and proof of copying by direct evidence of copying or by indirect evidence showing access to the original work; and "substantial similarity" between the original and allegedly infringing work. In case of any copyright infringement, the plaintiff (party who initiates the law suit) must prove that the defendant’s (a person or party against whom an action or claim is brought in a court) work is “substantially similar” to the plaintiff’s work. Hence, the infringement test involves two important components. First, did the defendant actually copy the plaintiff’s work? And secondly whether the copied elements would protect the expression and is sufficiently important to be actionable. In simple words, the aim of the test is to determine if the copying constitute any infringement.

To prove copyright infringement, infringer shall have access to the plaintiff’s work. In this context, access means whether the infringer had a suitable opportunity to witness the original work or not. Therefore, while determining infringement, the courts often compare all possible elements of both the works created by the plaintiff and the defendant & exclude all public domain elements from work and look only to the key elements that are protectable. Hence, in establishing the protectable elements, the court would distinguish between the idea underlying in the work created and its expression. For that reason the term “substantial similarity” causes confusion in the copyright infringement analysis because the same term has different meanings at two different points in the infringement analysis.


Judge Learned Hand articulated the first substantial similarity test as early as 1930. In Nichols, the plaintiff wrote the play "Abie's Irish Rose." Universal produced a motion picture entitled "The Cohens and the Kellys," which plaintiff alleged was taken from his play. Learned Hand began the analysis with a plot summary of the two works, revealing at most non-literal copying. Noting the justification for a substantial similarity test, however, he added that it is of course essential to any protection of literary property, whether at common-law or under the statute, that the right cannot be limited literally to the text, else a plagiarist would escape by immaterial variations. That has never been the law, but, as soon as literal appropriation ceases to be the test, the whole matter is necessarily at large, so that, as was recently well said by a distinguished judge, the decisions cannot help much in a new case While not explicitly articulating it, Learned Hand expressed a preference for substantial similarity to be judged from the perspective of the intended audience of the work. He recognized that expert testimony could be used to confuse a similarity analysis because of the infinite number of levels of abstraction which could be brought into a case, given the ingenuity and motivation of the expert witness.


• Extrinsic- Intrinsic

The extrinsic-intrinsic test is a two-part test for substantial similarity The first part of the test considers “extrinsic” similarity. the extrinsic test focuses on the objective similarities of the works’ ideas and protectable expressions. For this extrinsic part of the analysis, expert testimony may be taken into consideration. The second part of the test considers “intrinsic” similarity. The factfinder undertakes a purely subjective evaluation of the total concept and feel of the two works. Expert testimony is not allowed on this issue

• Idea/ Expression Dichotomy

The idea/expression dichotomy is the principle that copyright protects the original expression of ideas but does not protect the ideas themselves. For example, the idea of creating fashionable dolls with exaggerated features is not protected by copyright law. Only the original expressions of a designer’s idea are protected, such as the designer’s unique choice of hair color and style, clothing, or accessories for the dolls.

• Merger

Merger is the principle that when there are only a few possible ways to express an idea, those expressions are not protectable. They “merge” with the unprotectable idea. This means that individual words, single colours and short phrases are not protected by copyright.

• Scènes à Faire

This doctrine says that when an element of a work is customary in a particular genre, it is not protectable. For example, although some plot elements can be protected by copyright, parents’ disapproval of their children’s romantic choices is a very common plot element and thus is not protectable. Similarly, although the composition of a photograph can be protected by copyright, certain compositions are so conventional that they cannot be protected by copyright.

Under World Common Law

Substantial Similarity in Copyright Law has come down to following main topics:

• Computer Games- Aspects of computer games that qualify as scènes àfaire should be disqualified from the substantial similarity analysis. There are a number of items that qualify as scènes à faire in computer games: the use ofpoints and “coins” to reward a player’s progress through the game; the displayof visual game tips in the margins of the game screen; the notion of an in-gamemarketplace where the player can redeem coins for game advantages; and thenotion of exchanging earned coins for strategic advantages.

• Visual Arts- A federal district court in California considered the similarity between two heart shapes that appeared to be formed by dripping paint to createuneven edges. Because the shape of a heart is such a ubiquitous image, thesimilarity could not rise to the level of substantial similarity

• Useful Articles- designs of useful articles can havecopyright protection if they have “features that can be identified separately from,and are capable of existing independently of, the utilitarian aspects of the article.”

• Evidence of Copyrighted Work- Proof of substantial similarity, and thusproof of copyright infringement, requires that the plaintiff introduce an accuratecopy of its work so that it can be compared to the defendant’s.A party’s inabilityto produce a copy of its work so that it can be compared to the allegedly infringingwork can be fatal to its claims

Related Famous Case Laws

• R.G. Anand v. Delux Films delivered by Indian Supreme court helps in understanding the concept of the substantial similarity. In this case, the author of the play Hum Hindustani R.G. Anand sued a production company Delux films for making a movie that was allegedly an exact copy of his play. The Supreme Court of India held that despite some similarities, the movie did not infringe the play’s copyright as there some substantial dissimilarities between the two. The dissimilarities were differences in story, theme, characterization and climaxes. Apart from this the Court also held that the copyright cannot be sought for an idea, it’s applicable only for an expression of an idea and not idea itself, as the allegation by Anand was that the defendants violated his copyright by copying his idea which was held invalid.

• Funky Films, Inc. v. Time Warner Entertainment is a reminder just how complex and complicated it can be proving copyright infringement. Funky Films involved a claim that the award winning Home Box Office mini-series “Six Feet Under” infringed Funky Films’ screenplay “The Funk Parlor.” At issue on appeal was the district’s court conclusion that “The Funk Parlor” and “Six Feet Under” were not substantially similar.In Funky Films, the district court assumed that the defendant had access to the plaintiff’s work. Ordinarily, in order to establish “access” a plaintiff must show that the defendant had an opportunity to view or copy the plaintiff’s work. This opportunity must be a “reasonable opportunity” and not a “bare possibility” in the sense that anything is possible.

• Ray K. Harter et al. vs. Disney Enterprises,Inc.There must be substantial similarity not only of the general ideas but of the expressions of those ideas as well. First, similarity of ideas is analyzed extrinsically, focusing on objective similarities in the details of the works. Second, if there is substantial similarity in ideas, similarity of expression is evaluated using an intrinsic test depending on the response of the ordinary, reasonable person to the forms of expression.