Thanks, David!

Andrew:

You will notice the Plaintiff's complaint states, "Defendants have had actual and constructive access to Plaintiffs' copyrighted works, and have themselves generated works that are substantially similar, if not identical to, Plaintiffs' copyrighted works...Defendants have copied, and continue to copy, in whole or in substantial part, copyrighted elements of the works..."

In the Ninth Circuit (where cases from the District of Arizona are appealed) a plaintiff must establish ownership and unauthorized copying of protected expression. Proof of copying requires evidence that the alleged infringer had access to the protected work before creating the accused work and that a substantial similarity of expression exists between the protected and accused works. Here access is proven by the wide dissemination of the Plaintiff's work.

The substantial similarity component, however, follows “a two-part test having ‘extrinsic’ and ‘intrinsic’ components...[T]he extrinsic [component]...objectively considers whether there are substantial similarities in both ideas and expression ...” Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1442 (9th Cir. 1994). The extrinsic component requires “analytic
dissection” and compares “the individual features of the works to find specific similarities between the plot, theme, dialogue, mood, setting, pace, characters, and sequence of events.” The intrinsic component measures “expression subjectively.”

If the complaint cited the single copyrighted work (the images as compared in the post), I think there is a clear argument for access and substantial similarity. This reminds me generally of Steinberg v. Columbia Pictures Industries, Inc., 663 F. Supp. 706 (S.D.N.Y. 1987) where the illustrator of numerous New Yorker covers won a copyright infringement suit against Columbia Pictures for the substantial similarity between the Moscow on the Hudson movie poster and a magazine cover.

However, looking at the breadth of Copyright claims in the complaint, you have to wonder about the idea/expression dichotomy and to what extent generalities found between the Emily the Strange and Rosamond characters may be disregarded by the court. Copyright is only extended to actual expression. Thus, the general "idea" of a strange young girl with "a short dress, dark hair with long square-cut bangs, "mary jane" shoes, "posse" of four black cats, persistent strangeness, and fascination with dark themes," may not altogether be protectable.