Judicial assessments of copyright infringement claims remain dominated by the two-prong "substantial similarity" test. Despite this test's centrality to copyright doctrine, very little is known about how courts operationalize and apply it. In a recent paper, An Empirical Study of Copyright's Substantial Similarity Test, Clark Asay (BYU) seeks to sketch some of the test's general empirical contours. To do so, the paper, drawing from the universe of substantial similarity opinions (found on WestLaw), exploits a random sample of 1,005 opinions (district and appellate) between 1978 and 2020.
The study's key findings intrigue. First, and unsurprising to most practitioners in this space, the Second and Ninth Circuits dominate this litigation. Second, judicial analyses on the substantial similarity test tend to dwell on the second prong with comparably less judicial attention to the first. Third, judicial analyses focusing on prong two--assessing whether the defendant’s copying amounts to improper appropriation--evidence a wide diversity of approaches. As Asay notes, "[n]o dominant means exists for resolving this question, and, in any given opinion, a court typically uses multiple subtests and copyright limitations to decide this inquiry."
The paper concludes by recommending: "First, courts should maintain the two traditional prongs of the substantial similarity test as distinct and reinvigorate their assessments of similarity under the first prong of the substantial similarity test. Second, courts should make discussing and applying any relevant copyright limitations the heart of their prong two analyses to ensure that copyright law serves its constitutional purposes."
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