Ninth Circuit to Reconsider Copyright's "Total Concept and Feel" Test for Substantial Similarity

WISECODE Take

The Ninth Circuit's reconsideration of the copyright "total concept and feel" standard highlights the long-standing tension between objective and subjective judgment in determining "substantial similarity" under US copyright law. Businesses often mistakenly assume visual similarity equates to infringement, but this subjective "feel" standard is ambiguous and hard to grasp. Analogous to sports, rules should be clear, and referee judgments objective. In this case, photographer Sedlik sued tattoo artist Von Drachenberg for copying his Miles Davis portrait, yet the jury found the tattoo and social media posts lacked "substantial similarity." This is like a game's outcome being decided by the audience's "overall feeling" rather than rules, making the judgment standard unclear. This highly subjective judgment poses significant risks for business owners, entrepreneurs, and legal executives. Without the ability to accurately predict whether a work will be deemed infringing due to "substantial similarity," managing legal risks becomes difficult, potentially leading to missed market opportunities. First, businesses should ensure copyright registration for all creations and meticulously document the creative process. Second, when facing potential IP infringement concerns, professional assessment is crucial, focusing on analyzing "protectable elements" beyond mere visual resemblance. Third, closely monitor the court's re-hearing outcome, as the new criteria will directly impact future infringement determinations. Copyright protection should be a cornerstone of innovation, not an ambiguous trap. Zhidian offers professional copyright infringement risk assessment to help businesses clarify their rights boundaries.