Court: United States Court of Appeals for the Ninth Circuit (en banc)

Document status: Court Order and Opinion (cross-appeal by Defendants on finding of infringement)

Issue or relevant point: Defendants argued their product was dissimilar in numerous ways from the product which they were found to have copied.  The Court considered whether this was significant enough to disprove evidence of a substantial similarity between the works.

Ruling or Findings: A determination of “substantial similarity” requires both extrinsic (factual, quantifiable similarities) and intrinsic (reasonable person) tests.  But a finding of substantial similarity does not require there to be duplication or near identity.1