Basic Methods to Judge Substantial Similarity between the Works of Fine Art

—Animation International Ltd. v. Shanghai Yaya Information Technology Co., Ltd. et al. for Infringement of Rights of Reproduction and Adaptation

[Summary]

“Contact” + “substantial similarity” shall be the prerequisites to determine that the allegedly infringing work has plagiarized another’s work of fine art. Specifically, judging whether the works constitute substantial similarity is the difficulty in the intellectual property right cases. Three steps are formulated to solve this issue: first, when determining whether the allegedly infringing work has plagiarized the partiality of the work on which the Plaintiff claims right, it is more likely that the works have constituted infringement if the plagiarized part is the essence or the part with high degree of originality of the original work; second, the abstraction-filtration-comparison inspection method could be taken as the primary method, key elements of the work on which the Plaintiff claims the right should be deleted to check whether the concerned part is infringed. Meanwhile, the scope of right of the works of the Plaintiff and the Defendant should be defined reasonably. It should prevent the Plaintiff from monopolizing the uncreative expression while providing necessary protection to the Plaintiff's work, thus guaranteeing fair right to public elements of other authors. Therefore, on the basis of properly checking the works of the Plaintiff and the Defendant, identical and similar elements of lines, shapes, tone and colors should be defined firstly, and key elements should be filtered, the public elements shall be reviewed finally to judge whether the works constitute substantial similarity according to the filtered identical or similar elements. Third, the overall comparison method could be used to judge whether the two pieces of works are substantially similar after making overall comparison between them. 

Basic Methods to Judge Substantial Similarity between the Works of Fine Art (I)

Basic Methods to Judge Substantial Similarity between the Works of Fine Art (II)