ABSTRACT
The substantial similarity test is copyright law’s dominant means by which courts determine whether a party has infringed another party’s copyright rights. Despite this, we have very little empirical evidence about what the test is and how courts apply it. To date, only a few empirical studies exist, and these are limited in several important ways, including in terms of scope, time periods covered, and volume of opinions. Mostly, courts, commentators, and scholars rely on anecdotal accounts of the test in both their conceptualizations and critiques of it.
To help provide a clearer empirical assessment of the test, this study examines a random sample of over one thousand substantial similarity opinions issued between 1978 and 2020. It covers opinions from district and appellate courts in every circuit and tracks a number of these opinions’ characteristics. These characteristics include: the subject matter and copyright rights in dispute; procedural posture; opinion date; the subtests, expert evidence, and copyright limitations used in the opinion; the sources of authority that courts rely on in their opinions; and outcomes for each part of the test and the case overall …
Asay, Clark D, An Empirical Study of Copyright’s Substantial Similarity Test (January 19, 2022).
First posted 2022-01-31 17:00:17
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