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[w]hen idea and expression coincide, there will be protection against nothing other than identical copying of the work

 

no substantial similarity may be found under the intrinsic test where analytic dissection demonstrates that all similarities in expression arise from the use of common ideas

 

elements of expression that necessarily follow from the idea receive no copyright protection

 

the court concluded that the similarities between the toy dinosaurs — their postures, body designs, and cuddly softness — all derived from the idea of a stuffed toy dinosaur, and accordingly found no substantial similarity of expression

 

all of these similarities derive from the common idea of a mask depicting the man in the moon. Pasillas simply cannot rely on these standard elements to satisfy the intrinsic test of substantial similarity of expression

[w]hen idea and expression coincide, there will be protection against nothing other than identical copying of the work

no substantial similarity may be found under the intrinsic test where analytic dissection demonstrates that all similarities in expression arise from the use of common ideas

elements of expression that necessarily follow from the idea receive no copyright protection

the court concluded that the similarities between the toy dinosaurs — their postures, body designs, and cuddly softness — all derived from the idea of a stuffed toy dinosaur, and accordingly found no substantial similarity of expression

all of these similarities derive from the common idea of a mask depicting the man in the moon. Pasillas simply cannot rely on these standard elements to satisfy the intrinsic test of substantial similarity of expression

Various circuits have developed their own specific tests that juries should use to assess substantial similarity. In the 9th Circuit, two cases highlight their approach to similarity between works of art are:

Various circuits have developed their own specific tests that juries should use to assess substantial similarity. In the 9th Circuit, two cases that highlight their approach to similarity between works of art are:

All US courts use "substantial similarity" as the test for this stage. (This can be confusing, because some courts use the same phrase for the amount of similarity required in the first stage).

• Just because you saw the baton, and decided to make a baton based on what you saw, that isn't necessarily infringement.
• If you take too much of the particular expression of Leo's baton, that will be infringement.
• "Obviously, no principle can be stated as to when an imitator has gone beyond copying the idea, and has borrowed its expression. Decisions must therefore inevitably be ad hoc." - Judge Learned Hand

All US courts use "substantial similarity" as the test for this stage. (This can be confusing, because some courts use the same phrase for the amount of similarity required in the first stage, to establish that copying happened).

• Just because you saw the baton, and decided to make a baton based on what you saw, that isn't necessarily infringement.
• If you take too much of the particular expression of Leo's baton, that will be infringement.
• The answer to that question is case-by-case, and left to the jury. "Obviously, no principle can be stated as to when an imitator has gone beyond copying the idea, and has borrowed its expression. Decisions must therefore inevitably be ad hoc." - Judge Learned Hand