Copyright Infringement and Defeating Substantial Similarity

Obtaining Pretrial Dismissal of Copyright Claims Absent Clear Court Guidance

Recording of a 90-minute premium CLE webinar with Q&A

Conducted on Tuesday, November 8, 2011

Recorded event now available

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Course Materials

This CLE course will provide guidance to counsel for copyright defendants seeking pretrial dismissal of copyright infringement actions. The panel will provide a practical approach to strengthen the case for obtaining summary judgment.


Substantial similarity is an essential element of a copyright infringement case. But, a lack of clear court consensus on the extent of similarity that constitutes substantial, and thus infringing, stymies defendants from success in seeking summary judgment.

Different tests for substantial similarity used by the courts have not been consistently applied, resulting in highly unpredictable, conflicting and confusing case law.

Recent court decisions are leading the way for copyright defendants to a practical approach for improving the likelihood of obtaining summary judgment, despite confusing case law.

Listen as our panel of copyright attorneys examines the different tests for substantial similarity, reviews court treatment of the issues, and provides guidance to establishing a stronger case for pretrial dismissal.



  1. Tests for substantial similarity
    1. Selection and arrangement test
    2. Copyright test
    3. Audience test
    4. Successive filtering test
  2. Court treatment
  3. Strategies for disproving substantial similarity
    1. Constituent elements
    2. Unprotected elements
    3. De minimis similarities or those not driven by protected elements


The panel will review these and other key questions:

  • What are the tests that are used to determine substantial similarity?
  • How have the courts addressed the different tests for substantial similarity?
  • What steps can copyright defendants take to disprove substantial similarity?

Following the speaker presentations, you'll have an opportunity to get answers to your specific questions during the interactive Q&A.


Joshua M. Dalton
Joshua M. Dalton

Bingham McCutchen

He has extensive experience in IP litigation, representing clients in patent, copyright, trademark, trade dress, false...  |  Read More

Lawrence T. Stanley, Jr.
Lawrence T. Stanley, Jr.

Bingham McCutchen

He focuses on the trial of patent, trademark and other intellectual property-based disputes. He is registered to...  |  Read More

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