War of the Dolls: Did the Ninth Circuit Fail to Apply the “Intended Audience Test” in Holding Substantial Similarity Should Be Determined from the Perspective of the “Ordinary Observer” and Not a “Child” in Mattel, Inc. v. MGA Entertainment, Inc.?

摘要

Emily Flasz writes an article on the application of the substantial similarity test in copyright infringement cases. Her article addresses whether the second prong of the substantial similarity test, the “intrinsic test,” should include the “intended audience test” when the works in issue are intended for children. She examines this question within the context of the Ninth Circuit’s decision in Mattel, Inc. v. MGA Entertainment, Inc. and provides an in depth look at how the Second, Third, Fourth, Sixth, and Ninth Federal Circuit Courts have applied the “intended audience test” when the works in dispute are intended for specialized audiences, particularly children.