What is the first step in the infringement test?

What is the first step in the infringement test?

• A. Is there independent creation?
• B. Is there close similarity?
• C. Does copying relate to a substantial part?
• D. Is there a fair use defence?

Answer: (B)

Infringement analysis starts by asking whether the defendant’s work is closely similar to the plaintiff’s protected expression. This closeness is the threshold that signals the possibility of copying and infringement. If there isn’t a close similarity, the claim generally falters at the outset because there’s no substantial resemblance in the protectable elements to support infringement. If close similarity is found, the analysis moves forward to determine whether copying actually occurred (often shown by evidence of access and actual copying) and whether the copied material constitutes a substantial part of the protectable expression, as well as considering any defenses like fair use. So, the first step is to assess close similarity, since it decides whether the claim can proceed to the next, more detailed questions.

Infringement analysis starts by asking whether the defendant’s work is closely similar to the plaintiff’s protected expression. This closeness is the threshold that signals the possibility of copying and infringement. If there isn’t a close similarity, the claim generally falters at the outset because there’s no substantial resemblance in the protectable elements to support infringement. If close similarity is found, the analysis moves forward to determine whether copying actually occurred (often shown by evidence of access and actual copying) and whether the copied material constitutes a substantial part of the protectable expression, as well as considering any defenses like fair use. So, the first step is to assess close similarity, since it decides whether the claim can proceed to the next, more detailed questions.