Sedlik v. Von Drachenberg: The Right Way to Evaluate Wrongfulness (Guest Blog Post)

by guest bloggers Bruce Boyden (Marquette Law) & Zahr Said (Santa Clara Law) As we mentioned in our previous post, the Ninth Circuit’s intrinsic-extrinsic framework for substantial similarity has a number of problems. Those problems include confusing terminology, misuse of the terms “objective” and “subjective,” the lack of a clear goal for the infringement determination, and an unnecessary division of the substantial similarity inquiry, which creates havoc not only at trial but on appellate review. (For more, see our brief at 10-13, 24-31.) It is a welcome development that the full Ninth Circuit is revisiting the question en banc this week. In this post, we’re not going to dwell on what is wrong with the current framework. Instead, we’re going to explain what we think should replace it and why. A test for copyright infringement has to make several discrete inquiries, many of which are uncontroversial. First, the plaintiff must first demonstrate that it is the owner of a valid…