Shosh Yonay, et al. v. Paramount Pictures Corporation

To prove copyright infringement, a plaintiff must show that the accused work appropriates original expression from the asserted work. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). In deciding that issue, courts ask whether the two works are “substantially similar.” In the decision below, the Ninth Circuit applied its twostep approach to substantial similarity. At the first step (the “extrinsic” test), the court breaks the copyrighted work into the protected aspects of its components—such as characters, plot, and themes—and compares each to the corresponding component of the allegedly infringing work. App., infra, 7a-8a. Only if the court itself finds those individual elements “substantially similar” under that threshold inquiry can the case proceed to the second step (the “intrinsic” test), where a factfinder assesses the works’ similarity from “ ‘the standpoint of the ordinary reasonable observer.’ ” Id. at 7a. The Fourth and Eighth Circuits employ a similar approach. The Second, Third, Fifth, Seventh, and D.C. Circuits reject that component-by-component dissection. They instead compare the works as a whole, asking (in a single step) whether an “ ‘ordinary observer’ ” would perceive them “as coming from one creative source.” Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1003-1004 (2d Cir. 1995). The question presented is: Whether courts may decide for themselves that a copyrighted work and an allegedly infringing work are not substantially similar—granting judgment for the defendant—without considering how an ordinary observer would perceive the works as a whole.