Ninth Circuit Clarifies That “Substantial Similarity” is not a Required Element of Copyright Infringement

March 01, 2012

On Feb. 16, 2012, the Ninth Circuit explained in Range Road Music, Inc. v. East Coast Foods, Inc., 2012 WL 502510, that substantial similarity “is not an element of copyright infringement,” and that it is “irrelevant” in cases involving direct copying of a plaintiff’s entire work.

In copyright law, “substantial similarity” can refer to the degree of similarity a plaintiff must show to prove that elements in a work not copied in its entirety are derived from copying. Proving substantial similarity can be fact-intensive and can require a mix of lay and expert testimony. In the Ninth Circuit, for example, courts employ a two-part analysis consisting of objective and subjective tests to determine whether the protected elements of the two works are substantially similar. See, e.g., Swirsky v. Carey, 376 F.3d 841, 845 (9th Cir. 2004) (citing Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435 (9th Cir. 1994)).

The Ninth Circuit addressed some of these issues in the Range Road Music case. A group of music companies had sued the operators of a restaurant, alleging that the restaurant’s unlicensed use of recorded songs and live performances of copyrighted musical compositions constituted infringement. Based largely on a private investigator’s declaration that he observed the songs being performed in the restaurant, the district court granted summary judgment for the plaintiffs. The defendants appealed and argued, among other things, that the plaintiffs had offered insufficient infringement evidence because they failed to offer evidence of “substantial similarity” between the compositions performed and the copyrighted works.

The Ninth Circuit affirmed. It explained that substantial similarity “is not an element of copyright infringement,” but rather “a doctrine that helps courts adjudicate whether copying of the constituent elements of the work that are original” actually occurred when an allegedly infringing work appropriates elements of an original without reproducing it  “in toto.” In other words, a plaintiff need not prove substantial similarity if it proves the defendant copied the whole work. Evidence that a defendant directly copied an entire work can consist of testimony based on directly observing the copying.

Range Road Music adds clarity to the proof required in instances of direct copying of entire works, and may help copyright owners trying to win infringement claims at summary judgment.


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This article was originally published by Bingham McCutchen LLP.