IS IT THE SAME OR ISN'T IT? HOW DOES ONE TELL?

摘要

Oftentimes, the key question in any copyright case is whether the alleged infringing work is "substantially similar" to the author's creation. Generally, that will simply be determined by a lay person looking at the two works and making what might appropriately be called a "gut reaction determination" as to whether they are substantially similar. However, in some complex cases, the following procedures might be required ― at least in the Sixth Circuit, and possibly something like it elsewhere as well. 1. Filter out anything that does not have some degree of creativity. This will be a significant issue in database collection cases. 2. Filter out anything that might be said to "merge" the idea and the expression. In copyright law, it is only the expression that can be protected, not the idea. 3. Filter out scenes a faire, i.e., things that follow naturally or that are dictated by external factors. (Corporate counsel may need experts for this factor.) 4. Figure out the "intended audience" and get some experts from that intended audience to opine as to whether the works are substantially similar. 5. Figure out what to do when your opponent produces as many experts as you do and who reach the opposite conclusion from your experts.