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A Two-Part Test for Copyright Infringement 413
because they may show that I did copy from you as a factual matter, even if they do not
show that I infringed as a legal matter.) Do you agree with this technique? Obviously, it
poses the danger that juries will later conflate both protectable and unprotectable
similarities when judging infringement.
Access: A full exploration of access is beyond the scope of this chapter, but, generally,
there must be a “reasonable possibility” that the defendant had access to the plaintiff’s
work, either through a chain of events (my producer met you at a bar where you gave her
a demo of a song that you now claim I copied), or widespread dissemination of the
plaintiff’s work (your song was played so often that I must have heard it). As we saw in
Computer Associates, programmers try to devise “clean room” programming techniques,
in which coders are kept away from the code to be emulated functionally, precisely to
preclude access. However, few of us create in hermetically sealed environments, and
courts will sometimes presume access even in the absence of any evidence if similarities
between the works are so “striking” as to make independent creation implausible. These
evidentiary questions are complex. As Arnstein suggests, analytical dissection and expert
testimony about the nature of those similarities (and thus the likelihood that they are
accidental) are appropriate to resolve them.
In this Chapter, we have focused on the second question: whether the copying
“went so far as to constitute improper appropriation”—that is, copyright infringement.
Arnstein provides two general guidelines with regard to this inquiry:
• unlawful appropriation should be determined by the “lay listener” or observer,
and
• analytical dissection and expert testimony are “irrelevant.”
What is the court’s reasoning here? Why leave this determination to the lay juror,
without the aid (or distraction) of dissection and expert testimony? Should expert
testimony be permitted to assist the jury with certain discrete determinations, such as
distinguishing between protectable and unprotectable material? More broadly, do you
agree with Arnstein that “improper appropriation” should turn on whether the defendant
has unduly impinged on the plaintiff’s market interest “in the potential financial returns
from his compositions which derive from the lay public’s approbation of his efforts”?
The Ninth Circuit has adopted and reformulated Arnstein v. Porter’s two-part test. It
refers to the first prong—whether the defendant copied—as the “extrinsic” or “objective”
inquiry. Here external criteria, analytic dissection, and expert testimony are permissible.
The second prong—whether the copying went so far as to violate the plaintiff’s
copyright—is referred to as the “intrinsic” or “subjective” inquiry, and the proper lens
here is the response of the ordinary reasonable person. See Sid & Marty Krofft v.
McDonald’s, 562 F.2d 1157 (9th Cir. 1977) (adopting “extrinsic” and “intrinsic”
terminology; finding McDonald’s had infringed copyrightable elements of the “H.R.
Pufnstuf” children’s television shows and merchandise); Shaw v. Lindheim, 919 F. 2d
1353 (9th Cir. 1990) (adopting “objective” and “subjective” terminology; finding triable
issue of fact regarding substantial similarity where plaintiff claimed that his script
entitled “The Equalizer” was infringed by defendants’ pilot script for its “Equalizer”
television series). Do you find the Ninth Circuit’s nomenclature helpful?
The following case engages with the “ordinary observer” test as introduced in
Arnstein and developed in other Circuits, and suggests a limited modification.