Sixth Circuit Gives Different Views On Infringement

In the film case, the Sixth Circuit decided that the district court properly concluded that no reasonable jury could find that the defendants' film “Little Nicky” was substantially similar to the poem or screenplay “The Keeper,” written by the plaintiff. Stromback v. New Line Cinema, 02-2387. In its ruling, the Sixth Circuit clarified its recent adoption of a formal test for determining substantial similarity in copyright infringement cases. The district court had decided on a summary judgment ruling. After the ruling, the Sixth Circuit adopted a two-part test for substantial similarity in Kohus v. Mariol, 328 F.3d 848 (6th Cir. 2003). The first part of the test involves determining which parts of the plaintiff's work are protected by copyright; the second part involves whether the allegedly infringing work is substantially similar to the protectible elements.

In Stromback, the appeals court noted, “Our test is similar to the Ninth Circuit's test, because the first part, like the Ninth Circuit's extrinsic test, requires a determination of only the expressive elements of a work, while the second part, like the Ninth Circuit's intrinsic test, asks whether the ordinary, reasonable observer would find the works, taken as a whole, to be substantially similar. … However, significant differences remain in both parts. In particular, we apply a more stringent standard regarding when to allow expert testimony on the first part of the test. Also, … the first part of our test remains more free in form than the Ninth Circuit's extrinsic test.”