Substantial Similarity

"The standard test for substantial similarity between two items is whether an `ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, andregard [the] aesthetic appeal as the same.’"the total-concept-and-feel locution

“The court, confronted with an allegedly infringing work, must analyze the two works closely to figure out in what respects, if any, they are similar, and then determine whether these similarities are due to protected aesthetic expressions original to the allegedly infringed work, or whether the similarity is to something in the original that is free for the taking”
— Tufenkian Import/Export Ventures, Inc. v. Einstein Moomjy, Inc.

“elements arguably in the public domain .. may not be copyrightable in and of themselves, but their existence and arrangement in this photograph indisputably contribute to its originality. .. The question is whether the aesthetic appeal of the two images is the same.”
— Mannion v Coors Brewing, 2005

"no plagiarist can excuse the wrong by showing how much of his work he did not pirate.""if the points of dissimilarity not only exceed the points of similarity, but indicate that the remaining points of similarity are, within the context of plaintiff’s work, of minimal importance.. then no infringement results."

“Justice Holmes made it clear almost ninety years ago that actionable copying does not occur where a photographer takes a picture of the subject matter depicted in a copyrighted photograph, so long as the second photographer does not copy original aspects of the copyrighted work, such as lighting or placement of the subject.”
— Caratzas v. Time Life, Inc., No. 92 Civ. 6346(PKL), 1992 WL 322033, at

“It is the well established rule that a copyright on a work of art does not protect a subject, but only the treatment of a subject.”
— F.W. Woolworth Co. v. Contemporary Arts, 193 F.2d 162, 164 (1st Cir.1951)

“Others are free to copy the original. They are not free to copy the copy.”
— Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 249, 23 S.Ct. 298, 47 L.Ed. 460 (1903)

“What makes plaintiff’s photographs original is the totality of the precise lighting selection, angle of the camera, lens and filter selection.”
— SHL Imaging, Inc. v. Artisan House, Inc., 117 F.Supp.2d 301, 311 (S.D.N.Y.2000)

“Leibovitz is entitled to protection for such artistic elements as the particular lighting, the resulting skin tone of the subject, and the camera angle that she selected.”
— Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 116 (2d Cir.1998)

“The necessary originality for a photograph may be founded upon, among other things, the photographer’s choice of subject matter, angle of photograph, lighting, determination of the precise time when the photograph is to be taken, the kind of camera, the kind of film, the kind of lens, and the area in which the pictures are taken."”
— E. Am. Trio Prods., Inc. v. Tang Elec. Corp., 97 F.Supp.2d 395, 417 (S.D.N.Y.2000)

Add Your Comment



Email (optional):

Submit your comment: