Circuits apply varying tests including extrinsic and intrinsic analysis, abstraction-filtration-comparison, and ordinary observer standards. Unprotectable elements must be filtered before comparison.
The test differs for functional works.
Alternative Names:
Substantial Similarity Test|Copyright Similarity
Why it Matters?
Filtration precedes comparison, and failing to filter facts, ideas, scenes a faire, and merged expression produces a comparison of unprotectable material that inflates apparent similarity, which is the analytical error defendants should identify in plaintiff expert reports. For software, abstraction-filtration-comparison removes elements dictated by efficiency, external factors, and public domain sources before any comparison occurs.
Frequently Confused with
Related terms
Frequently asked questions
What analytical error should be identified?
How is software analyzed?
