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Substantial Similarity

Illustrates the "substantial similarity" doctrine from U.S. copyright law, using a set of case summaries.

Three Boys Music Corp. v. Michael Bolton, 212 F.3d 477 (9th Cir. 2000)


The Isley Brothers, a famous soul music band, released a song entitled “Love is a Wonderful Thing” in 1966. The song was played by radio networks in Connecticut in the same year. Michael Bolton and Andrew Goldmark were teenage soul music fans living in Connecticut in 1966. In 1991, Bolton and Goldmark released a song with the same title. The copyright holder of the Isley Brothers’ song sued Bolton, Goldmark and their record companies for infringement. The district court found Bolton’s song substantially similar to the Isley Brothers song and held the defendants liable for infringement pursuant to a jury verdict.

Procedural Notes

The Ninth Circuit noted that “appellate courts have been reluctant to reverse jury verdicts” on issues such as access and substantial similarity in music cases. The court would only overturn a jury verdict if no reasonable jury could reach such a verdict. Nor would the court be inclined to second guess the jury’s decision on credibility of the evidence. The appellate court refused to reassess the jury’s decision in this case because, assuming validity of the evidence the jury relied on, the jury’s decision was reasonably based on substantial evidence.

Court's Analysis

The Ninth Circuit concluded that “[a]lthough this may be a weak case of access and a circumstantial case of substantial similarity, neither issue warrants reversal of the jury’s verdict.”

First, the court upheld the jury's finding that defendants had reasonable access to the Isley Brothers’ song, even though the evidence supporting reasonable access was comparatively weak. The court then explained that the inverse ratio rule meant that a strong showing of access could alleviate a plaintiff’s burden of proof for showing substantial similarity. However, it did not mean that a weak showing of access would increase the burden for showing substantial similarity.

Following Ninth Circuit precedent, the court applied a two-part substantial similarity test encompassing extrinsic similarity and intrinsic similarity. Under that test, extrinsic similarity is determined by analyzing the various “concrete elements” of the works in question, perhaps using “analytical dissection of [the] work and expert testimony.” Following Sid and Marty Krofft Television Prods., Inc. v. McDonald's Corp., 562 F.2d 1157 (9th Cir. 1977), the court noted that, “a jury may find a combination of unprotectable elements to be protectable under the extrinsic test” if it indicates substantial appropriation. If the factfinder decides there is extrinsic similarity, it then considers intrinsic similarity. Intrinsic similarity is determined by asking, in the words of Pasillas v. McDonald's Corp., 927 F.2d 440 (9th Cir. 1991), “‘whether the ordinary, reasonable person would find the total concept and feel of the works to be substantially similar.’”

The court declined to reassess the jury’s decision on intrinsic similarity. It also said it would apply the “clearly erroneous” standard to “factual determinations” regarding extrinsic similarity. The court decided that the jury’s finding of extrinsic similarity between the songs “based on a unique compilation” of five unprotectable elements was not clearly erroneous.

Works at Issue

Isley Brothers, Love is a Wonderful Thing

Bolton and Goldmark