Copyright News

• Publication year: 2020
• Author: Jo Ardalan

Copyright News

Jo Ardalan

One LLP

THE NINTH CIRCUIT DOESN'T HAVE A WHOLE LOTTA LOVE FOR THE INVERSE-RATIO RULE IN COPYRIGHT

In an en banc decision, the Ninth Circuit recently rejected the controversial inverse-ratio rule sometimes used in proving copyright infringement, joining the Second, Seventh, and Eleventh Circuits in doing so.¹

Proving copyright infringement ordinarily requires evidence that the defendant had access to the plaintiff's work and that the two works share substantially similar protectable elements. Enter the inverse-ratio rule, which allows a "lower standard of proof of substantial similarity when a high degree of access is shown."²

The Ninth Circuit adopted the rule in 1977 in Sid & Marty Krofft Television Productions, Inc v. McDonald's Corp.³ In doing so, however, the court offered only "checkered" approval, explaining that "it is impossible to quantify this standard" and leaving unaddressed whether the rule applied to the actual copying or to the unlawful appropriation prong of the infringement analysis.⁴,⁵ Confusingly, the court used the phrase "substantial similarity" in reference to both copying and unlawful appropriation.

The rule was criticized for "inextricably linking" substantial similarity with proof of access in that "the stronger the evidence of access, the less compelling the similarities between the two works need be in order to give rise to an inference of copying."⁶ And as one copyright law scholar observed, "[t]he inverse ratio theory confuses fundamental principles of infringement analysis: access is relevant only in establishing the act of copying, not in establishing the degree thereof. Once copying is established, access is irrelevant and the inquiry shifts to the final stage of the infringement analysis, material appropriation."⁷

In 1987, the Ninth Circuit distanced itself from the rule in Aliotti v. R Dakin & Co., although it continued to apply the rule in "confusing ways"⁸ for another 31 years. It relied on the rule when there was a clear concession of access, but avoided it when access was not conceded.⁹

In 2018, the Ninth Circuit pointed the rule in the other direction. In overruling Three Boys Music v. Bolton, it held that the "more compelling the similarities supporting an inference of copying, the less compelling the evidence of access need be."¹⁰

But re-directing the rule did not put an end to the disquiet it engendered. In Skidmore as Trustee for Randy Craig Wolfe Trust v. Led Zeppelin, the Ninth Circuit leveled...