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Sixth Circuit Gives Different Views On Infringement

By Stan Soocher

Issuing two important copyright-infringement decisions, the U.S. Court of Appeals for the Sixth Circuit recently offered different methods for dealing with different types of disputed works. One case involved the film industry; the other involved the recording industry.

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.

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