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.
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This article was originally published by Bingham McCutchen LLP.