cyckV4

412 COPYRIGHT’S “REACH”: INFRINGEMENT
sufficient to prove copying. On this issue, analysis (‘dissection’) is relevant, and the
testimony of experts may be received to aid the trier of the facts. If evidence of access is
absent, the similarities must be so striking as to preclude the possibility that plaintiff and
defendant independently arrived at the same result.
If copying is established, then only does there arise the second issue, that of illicit
copying (unlawful appropriation). On that issue (as noted more in detail below) the test
is the response of the ordinary lay hearer; accordingly, on that issue, ‘dissection’ and
expert testimony are irrelevant.
In some cases, the similarities between the plaintiff’s and defendant’s work are so
extensive and striking as, without more, both to justify an inference of copying and to
prove improper appropriation. But such double-purpose evidence is not required; that is,
if copying is otherwise shown, proof of improper appropriation need not consist of
similarities which, standing alone, would support an inference of copying. . . .
Assuming that adequate proof is made of copying, that is not enough; for there can
be ‘permissible copying,’ copying which is not illicit. Whether (if he copied) defendant
unlawfully appropriated presents, too, an issue of fact. The proper criterion on that issue
is not an analytic or other comparison of the respective musical compositions as they
appear on paper or in the judgment of trained musicians. The plaintiff’s legally protected
interest is not, as such, his reputation as a musician but his interest in the potential
financial returns from his compositions which derive from the lay public’s approbation
of his efforts. The question, therefore, is whether defendant took from plaintiff’s works
so much of what is pleasing to the ears of lay listeners, who comprise the audience for
whom such popular music is composed, that defendant wrongfully appropriated
something which belongs to the plaintiff. . . .
Notes
• • • • • • • • • •
“[There are] two separate elements essential to a plaintiff’s case in such
a suit:
“a) that defendant copied from plaintiff’s copyrighted work and
b) that the copying (assuming it to be proved) went to far as to
constitute improper appropriation.”
This two-part test from Arnstein has served as a basic template for copyright infringement
tests in many other Circuits. The general contours of each prong are as follows.
First, there is the question of whether the defendant copied from the plaintiff’s
work at all, as opposed to independently creating her own work. This is a factual rather
than legal question. It is easily resolved if the defendant admits to copying; in cases of
digital music sampling, for example, there is no debate over whether the defendant
copied, just whether she took enough for that copying to be unlawful. Often there is no
such admission, however, and courts turn to analyzing whether circumstantial evidence
of similarities between the works, often called “probative similarity,” and evidence of
“access” are together enough to suggest copying.
Probative Similarity: At this stage, similarities are being assessed to answer the initial
question of whether there was copying, not the legal question of whether there was
infringement. Thus courts look at the question of similarity broadly, even including
similarities in unprotected material such as ideas. (Courts look at all the similarities