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substantial similarity 101

The question on many artists’ minds:
There’s so much great work out there. How do I know when I’ve crossed the line from being inspired by others into improper copying?

This is the $64,000 question (which, by the way, adjusted for inflation is the $517,000 question). Without going into the item-by-item requirements for asserting copyright infringement, it’s possible to focus on the one thing everyone knows is at the heart of infringement: This artwork looks a helluva lot like that artwork. In written court opinions this is called “substantial similarity.”

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Let’s look at it from the perspective of an artist who believes her work has been copied. If she claims infringement, she’ll have to convince the court or the jury that her work and the alleged infringer’s work are “substantially similar.” And even though the test a California court applies looks a little different than the one a New York court uses, all courts basically ask two questions.

First, would the average person say the overall look and feel of the two works was close enough that you’d conclude one was copied from the other? This seems easy enough, right? We’re all average people when it comes to that gut reaction, when you say, “Wow, even though it’s not exact, that’s too close.”

The second question, though, is more complicated. This asks whether there is copying of “protectable” elements. You see, not every part of your artwork is necessarily protectable content. At the heart of this analysis is the distinction between ideas and their expression. Copyright protects the unique expression in an image, not the idea contained in it. Likewise stock elements, like armor in a scene depicting knights jousting, visual components that are necessary to depict a thing, like the fur on a bear in a nature scene, or common motifs, like hearts and paisleys, are generally not protectable.

We think it would be useful for creators out there to get a better sense of where the protectable lies your expression. So we will from time to time look at a particular court’s decision, comparing the original artwork and the alleged infringing copy to see how the law decides what is and isn’t over the line.

We hope you're enjoying our copyright primer posts. Are you feeling more confident in your understanding of copyright law and how it relates to your art business? What questions do you have? We're here to help, so leave a comment below, or shoot us an email if you're feeling shy!


Please remember: The information provided on this blog and throughout our website is intended for general educational purposes only. While some information on this site relates to the law as a topic, it's not intended as a substitute for legal advice. Only a lawyer, selected by you and fully informed of the facts relating to your particular situation, can render legal advice.