Do you know what is substantial similarity test copyright infringement?

In the realm of intellectual property law, where the lines between inspiration and infringement can blur, a crucial litmus test emerges to determine the existence of infringement: the substantial similarity test copyright infringement.

This legal framework plays a pivotal role in assessing whether a work infringes upon the copyright-protected elements of another work.

In this blog, we delve into the intricacies of the substantial similarity test copyright infringement, exploring its significance, application, and impact in the realm of creative works.

When it comes to copyright infringement, it is not enough for two works to share mere surface-level similarities.

The substantial similarity test aims to ascertain whether the two works are similar in a meaningful and substantial way, focusing on the protected elements of the original work.

What is the Test for Copyright Infringement?

There are very different procedures to test the infringement in the works. The tests depend on the type of infringement. However, the two types of tests to find the infringed work are,

  • Substantial Similarity test copyright infringement
  • Ordinary Observer

Substantial Similarity Test Copyright Infringement

This test examines whether the allegedly infringing work is substantially similar to the original work.

It involves a detailed comparison of the specific elements or expression of ideas in both works, such as plot, characters, dialogue, settings, and overall structure.

If the similarities between the two works are significant enough that the ordinary observer would recognise the alleged copy as being derived from the original, infringement may be found.

Ordinary Observer Test

This test focuses on the overall impression created by the two works when viewed by an ordinary observer, rather than analysing specific elements.

It considers whether an average person, with no expert knowledge or training, would consider the two works to be substantially similar.

This test emphasises the subjective response of the audience and does not require an exact or literal copying of the original work.

How Copyright Owners Protect the Original Work

1. Registration: In many countries, although protection is automatic upon creation of the work, registering the copyright with the appropriate government entity can provide additional legal benefits.

The copyright registration process differs from one jurisdiction to another.

In the United States, registering the copyright work is necessary before claiming an infringement.

2. Monitoring: Copyright owners can actively monitor the use of their work.

This can be done manually or through automated tools that scan the internet for potential infringements.

3. Cease and Desist Notices: If an infringement is identified, the copyright owner can send a cease and desist letter to the alleged infringer.

This letter notifies them of the infringement and demands that they stop the infringing activity.

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4. DMCA Takedowns: In the digital world, copyright owners can take advantage of the Digital Millennium Copyright Act (DMCA) in the United States or equivalent laws in other countries.

They can issue a takedown notice to internet service providers (ISPs), hosting companies, or websites like YouTube, asking them to remove the infringing content.

5. Legal Action: If the infringer continues the infringing activity despite receiving a cease and desist letter, the copyright owner can file a lawsuit for infringement.

If the court finds that infringement has occurred, it can order the infringer to stop the infringing activity and may award damages to the owner.

6. Licensing: Another way to protect a copyrighted work is to license it. This means giving others permission to use the work under specific conditions.

Licensing can be an effective way to earn money from a work and ensure it is used in a manner the owner approves of.

7. Watermarking: For certain types of work, like photographs, watermarking can deter infringement by making unauthorised uses more easily detectable.

8. Education: Copyright owners can also engage in public education efforts to help people understand copyright laws and respect the rights of creators.

Claim of Copyright Infringement – Process

Identify Infringement: First, the copyright owner needs to identify a possible infringement.

This might involve discovering a work that is substantially similar to theirs being used without permission.

They might find this on their own or through automated services that scan the internet for potential copyright violations.

Verify Copyright Ownership: The copyright owner should verify that they indeed own the copyright to the infringed work.

This may involve checking copyright registration records or other documentation proving authorship and ownership.

Ensure It’s Not Fair Use or Licensed: The copyright owner should also determine whether the use of their work could be considered fair use (in jurisdictions that recognise this doctrine) or whether the user has obtained a license.

Fair use is a legal doctrine that allows limited use of copyrighted material without permission from the owner.

It applies in certain circumstances, like criticism, comment, news reporting, teaching, scholarship, and research.

Consult with an Attorney: If the copyright owner believes an infringement has indeed occurred, they may wish to consult with a copyright attorney.

The attorney can provide advice on the best course of action and help prepare necessary legal documents.

Send a Cease and Desist Letter: Typically, the next step is to send a cease and desist letter to the alleged infringer.

This letter informs them of the alleged infringement and asks them to stop the infringing activity.

File a DMCA Takedown Notice (if applicable): If the infringement is occurring online, the copyright owner might file a Digital Millennium Copyright Act (DMCA) takedown notice with the internet service provider hosting the infringing content. This notice requests that the infringing material be taken down.

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Initiate a Lawsuit: If the infringer doesn’t comply with the cease and desist letter, or if the copyright owner wishes to seek damages for the infringement, the next step could be to file a lawsuit.

To do this, the copyright owner would need to file a complaint with the appropriate court.

Legal Proceedings: After the lawsuit is filed, legal proceedings would follow the process in the relevant jurisdiction.

This might include discovery (the process of gathering evidence), pre-trial motions, trial, and potentially an appeal.

Settlement: At any point during this process, the parties could reach a settlement.

This would involve the alleged infringer agreeing to certain terms, such as stopping the infringing activity, possibly paying damages, and potentially agreeing to other conditions.

Substantial Similarity – Copyright Violation

In copyright law, the term “substantial similarity test copyright infringement” refers to a degree of similarity between two works such that it constitutes copyright infringement.

In other words, if a new work is substantially similar to a copyrighted work, then the creator of the new work may be guilty of copyright infringement.

The test for substantial similarity is twofold: it consists of an extrinsic test and an intrinsic test.

Extrinsic Test: This test is objective. It assesses the specific, concrete elements of the work that can be evaluated analytically.

These could be plot details, themes, dialogue, mood, setting, characters, sequence of events, etc.

This part of the test often involves expert testimony to dissect the components of the work.

Intrinsic Test: This test is subjective. It examines an ordinary person’s impression of the similarities between the two works.

It’s less about technicalities and more about the feel of the work. Do the works feel the same to a casual observer? This is often left up to a jury to decide.

An important thing to note is that substantial similarity test copyright infringement does not mean identical. Copyright infringement can occur even if the new work is not a direct, exact copy of the original work.

If enough of the elements are similar to give an overall impression of copying, that might be enough to constitute infringement.

Also, not all similarities constitute infringement. For example, if the similarities are based on common, unprotectable elements (e.g., ideas, facts, historical events, cliches, scenes a faire), then those similarities will not contribute to a finding of substantial similarity.


In conclusion, the substantial similarity test copyright infringement plays a crucial role in copyright infringement cases.

By employing both extrinsic and intrinsic elements, it provides a comprehensive means of evaluating whether an alleged work has infringed upon the original copyrighted work.

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Although the subjective nature of the intrinsic test can sometimes introduce elements of uncertainty, the two-pronged approach generally provides a balanced and equitable means of determining infringement.

Frequently Asked Questions

What is the substantial similarity test in copyright infringement?

The substantial similarity test copyright infringement is a method used in copyright law to determine if copyright infringement has occurred.

It involves a two-part assessment: the extrinsic test, which is an objective analysis of specific concrete elements in the work, and the intrinsic test, which is a subjective comparison based on the response of the ordinary observer to the overall feel or impression of the work.

Does substantial similarity test copyright infringement mean that the works have to be identical?

No, the works do not have to be identical for a finding of substantial similarity copyright infringement.

The test is whether the alleged infringing work is so similar to the copyrighted work that an ordinary reasonable person would conclude that the defendant unlawfully appropriated the plaintiff’s protectable expression by taking material of substance and value.

What is the difference between the extrinsic and intrinsic tests?

The extrinsic test is an objective comparison of specific expressive elements in the works, including plot, themes, dialogue, mood, setting, pace, characters, and sequence of events.

Expert testimony and analytical dissection are often used.

The intrinsic test, on the other hand, is a subjective comparison based on the response of the ordinary observer to the overall feel or impression of the work.

Is the substantial similarity test copyright infringement used in all cases?

While the substantial similarity test copyright infringement is a common method for determining copyright infringement, it’s not used in every case.

The application can vary depending on the jurisdiction and the specific details of the case.

For instance, in some cases, direct evidence of copying may be available, bypassing the need for the test.

What if the similarity between works is coincidental?

Copyright infringement requires copying, and copying requires access to the copyrighted work.

If a defendant can demonstrate that they had no access to the copyrighted work and that the similarity is coincidental, they may avoid a finding of infringement.

However, if the works are strikingly similar, courts may infer access (and thus copying), even without direct evidence.