This is your Release #14 (May 2017) Substantial Similarity in Copyright Law Robert C. Osterberg (Former senior partner, Abeles Clark & Osterberg, New York City) Eric C. Osterberg (Osterberg LLC, Boston)

In this release, the authors update and expand Substantial Similarity in Copyright Law with useful new discussion of the following important topics, along with many others: Summary judgment under the extrinsic/intrinsic test—Ninth Circuit approach: Although a number of Ninth Circuit opinions state that summary judgment is not favored on the issue of substantial similarity, it has been granted when the court concludes that no reasonable juror could find otherwise. However, the proper Ninth Circuit approach has not always been clear. See § 3:2.1[F], at note 139.3. Reality television shows: In 8th Wonder Entertainment, LLC v. Viacom International, Inc., a federal district court in California granted defendants’ motion for summary judgment dismissing the claim that a reality television show depicting the lives of women involved in the hip-hop and R&B music business infringed the treatment for a reality television show entitled Hip Hop Wives. The court found only random similarities of unprotectable elements that failed to constitute any concrete pattern or sequence that could amount to substantial similarity. See § 6:5, at note 52. Computer games: Aspects of computer games that qualify as scènes à faire should be disqualified from the substantial similarity analysis. In Spry Fox LLC v. LOLApps Inc., a federal district court in Washington State identified a number of items that qualify as scènes à faire in computer games: the use of points and “coins” to reward a player’s progress through the game; the display of visual game tips in the margins of the game screen; the notion of an in-game marketplace where the player can redeem coins for game advantages; and the notion of exchanging earned coins for strategic advantages. See § 8:10, at note 140. Sampling of sound recordings: In VMG Salsoul, LLC v. Ciccone, plaintiff sued for copyright infringement based on Madonna’s sampling, in her recording of “Vogue,” of a quarter-note single “horn hit” from plaintiff’s recording of the song “Love Break.” Rejecting the view of the Sixth Circuit in Bridgeport Music (continued on reverse) Practising Law Institute 1177 Avenue of the Americas New York, NY 10036 #205829 that any sampling of a sound recording is infringement per se, the Ninth Circuit held that Madonna’s copying was de minimis because an average audience would not recognize the taking of the horn hit. See new § 9:3.1[B]; see also § 2:1, at note 7.3. Visual arts: A federal district court in California considered the similarity between two heart shapes that appeared to be formed by dripping paint to create uneven edges. Because the shape of a heart is such a ubiquitous image, the similarity could not rise to the level of substantial similarity (Amusement Art, LLC v. Life is Beautiful, LLC). See § 10:2, at note 24.1. Useful articles: Under 17 U.S.C. § 101, designs of useful articles can have copyright protection if they have “features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” To “resolve widespread disagreement over the proper test for implementing § 101’s separate identification and independent existence requirements,” the Supreme Court decided Star Athletica, LLC v. Varsity Brands, Inc., a case involving cheerleading uniforms. The Court said that the proper test is clear from consideration of the statutory language alone. Revised chapter 16 analyzes the reasoning in the Court’s opinion, explains the new test, and discusses the likely impact on the authority of some of the precedents. See chapter 16, at note 4. Evidence of the copyrighted work: Proof of substantial similarity, and thus proof of copyright infringement, requires that the plaintiff introduce an accurate copy of its work so that it can be compared to the defendant’s. A party’s inability to produce a copy of its work so that it can be compared to the allegedly infringing work can be fatal to its claims. See new § 17:5. Works compared: The release provides new illustrations of the matters in issue in these cases: • Nola Spice Designs, L.L.C. v. Haydel Enters., Inc. (Mardi Gras bead dogs) (see new Appendix A.2.H) • Croak v. Saatchi & Saatchi, N. Am., Inc. (Pegasus-on-a-car sculptures) (see new Appendix A.2.I) • Fulks v. Knowles-Carter (short films) (see new Appendix A.3.F) • Culver Franchising Sys., Inc. v. Steak N Shake Inc. (restaurant commercials) (see new Appendix A.3.G) • Connor Bowen v. Paisley (song lyrics) (see new Appendix A.5.F) • Home Design Servs., Inc. v. Turner Heritage Homes Inc. (house plans) (see new Appendix A.7.J) • Malibu Textiles, Inc. v. Sentimental NY (fabric designs) (see new Appendix A.9.O) • Design Ideas, Ltd. v. Meijer, Inc. (clothespins with bird representations) (see new Appendix A.11.L) • Direct Techs., LLC v. Elec. Arts, Inc. (flash drive and icon) (see new Appendix A.11.M) • Star Athletica, L.L.C. v. Varsity Brands, Inc. (cheerleading uniforms) (see new Appendix A.11.N) • Spry Fox LLC v. LOLApps Inc. (video games) (see new Appendix A.13.A) Jury instructions: The release includes several instructions relating to how the jury in a California federal case should compare two musical compositions, Spirit’s “Taurus” and Led Zeppelin’s “Stairway to Heaven” (Skidmore v. Led Zeppelin). See Appendix B. In addition, the Table of Cases, the Defendant-Plaintiff Table, and the Index have been updated. FILING INSTRUCTIONS Substantial Similarity in Copyright Law

Release #14 (May 2017)

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