If the first prong of actual copying is crossed and answered in the affirmative, only then do we get to the second prong, what is known as a substantial similarity prong. So what this means is, if the court finds there was no actual copying, the case does not proceed further because there was no non-literal copying and therefore, no violation of the reproduction right. But on the other hand, if there was indeed actual copying to whatever evidence the court relies on, then we get to the second question, which is the substantial similarity question, and we have to determine that before we figure out whether there was in fact non-literal copying. The first thing to remember is that, in most jurisdictions in the United States, the second prong, the substantial similarity prong is a question for a civil jury. In other words, this is normally not a question that a judge can decide on his or her own. It has to be given over to a lay jury of civilians. The jury is instructed to answer the following question, "Are the two works qualitatively and quantitatively similar enough that the act of copying should be considered wrongful as an infringement?" In other words, the jury is asked to compare the two works side-by-side, examine how much similarity there is, and then come to a conclusion collectively on whether that level of similarity rises to the level of what we will say, a wrongful appropriation is, so that we should treat it as an act of infringement or an act of violation of the reproduction right, the exclusive right to copy the work. As you can see from the framing of the jury instruction, which of course tends to vary from one jurisdiction to the other but generally follows the same framework, it is a subjective question for the jury based on an overall comparison of the two works and the jury's sense of how this similarity plays out in light of the way in which the works actually are perceived, are heard, are visualized or read. Because remember, the reproduction right applies across the board to all categories of works and it's the same test, pretty much that the jury applies regardless of the categories of work. The only exceptions are very specialized kinds of works such as computer software. Now, for this question and in answering this question very importantly, the jury is not allowed to break down the works into their specific components and compare only the components. The comparison has to be of the works in their entirety. Additionally, the jury is not allowed to hear expert testimony. The jury must come to this conclusion on its own based on its perception, on its visualization or its understanding of the two works when placed side-by-side. Now as you can imagine from everything I've told you about the second prong, it is a complicated question because it's hard to predict in advance how a jury will decide. The jury has to make its decision based on a comparison of the works and this will obviously vary from one case to another based on the variety of different factors that the jury considers in it's decision making to determine whether some copying is wrongful, whether it rises to that threshold of wrongful copying. To give you a sense of this variation, here are some examples from real cases to show you how this plays out. So, first is a case involving two photographs. On the left of your screen, you have a photograph by the plaintiff which was the original work of authorship. On the right, you have the allegedly infringing photograph by the defendant. Guess what, the photograph on the right was considered to be an actual infringement because it was a form of non-literal copying. The court said it was an infringement. Now let's get to our second example, also involving two photographs. Again on the left, you have a photograph by the plaintiff, an original work of authorship. On the right, the defendant's photograph, allegedly infringing. Here, the court concludes that it was not an act of infringement because it was not substantially similar to the first photograph. It did not satisfy the second problem. Example three, now let's move to musical works. First, listen to the piece of music that will play for the next few seconds, where the plaintiff produces this as an original work of expression. Then you will listen to the defendant's work which was the allegedly infringing work. Having listened to the two now, the court's conclusion was that the second was in fact a substantially similar copy of the first regardless of any dissimilarities. These examples go to show you one important thing over and above all else, that the test of substantial similarity in the second prong, which is given over to a jury, is a subjective determination based on an overall comparison. It is hard to predict in advance how a jury will actually answer the question. Therefore, no clear guidelines can be determined when you are predicting how a court will decide this under the second prong. Only when the second prong is satisfied and answered in the affirmative in addition to the first prong, can there be a violation of the reproduction right for a non-literal copying. Both need to be satisfied together.
