Substantial Similarity Test Under Copyright Law

            When asked by a potential client from Fort Lauderdale, Florida, whether a person who does not pass the substantial similarity test under copyright law is in violation of that law, I explain that while generally that might be the case, one must first determine the elements of a cause of action for copyright infringement under Florida law.  In Florida, to bring a case for copyright infringement, a person must allege and prove (1) his/her ownership of a valid copyright and (2) the copying of the protected elements of the original work.  Benson v. Coca-Cola Co., 795 F.2d 973, 974 (11th Cir. 1986).  Ownership (the first element) is normally a non-issue since this can easily be proven by presentment of a copyright registration certificate.  Original Appalachian Artworks, Inc. v. Toy Loft, 684 F.2d 821, 826 (11th Cir. 1982).  The difficulty then becomes the infringement component, or the “copying” of the work (the second element). 

Generally, “copying” in an infringement action may be proven by direct or indirect evidence.  Direct evidence is evidence that shows that all or part of a protected work was actually copied; however, this type of evidence is rarely available.  Therefore, most cases are decided on the question of whether (1) the alleged infringer had access to the work in question, and (2) whether the two “works” are substantially similar.  Donald Frederick Evans & Assocs., Inc. v. Continental Homes, Inc., 785 F.2d 897, 904 (11th Cir. 1986).

As to the first issue, courts have found the “access” requirement satisfied where the alleged infringer has had the opportunity to view the copyrighted work.  Evans v. Wallace Berrie & Co., Inc., 681 F.Supp. 813, 816 (S.D.Fla. 1988).

Then, after establishing access, a court will turn to whether the two works are substantially similar.  At a minimum, to show substantial similarity, a person must establish that “an average lay observer” would recognize the alleged copy as having been appropriated from the copyrighted work.  Original Appalachian Artworks, Inc. v. Toy Loft, Inc., 684 F.2d 821, 829 (11th Cir. 1982).  “An ‘average lay observer’ presumably is an individual who, without any vested interest in the governing issue, is sufficiently informed and alert to identify precisely the differences in competing designs, yet sufficiently informed and independent to fairly identify and assess the similarities; that is, at a minimum neither an engaged expert nor an oblivious passerby.”  Lifetime Homes, Inc. v. Walker Homes, Inc., 485 F.Supp.2d 1314, 1321 (M.D.Fla. 2007).  In evaluating the question of substantial similarity, the court considers both the similarities and dissimilarities between the designs.  Howard v. Sterchi, 974 F.2d 1272, 1274-75 (11th Cir. 1992). The differences between two seemingly similar designs may negate infringement where the differences so outweigh the similarities that the similarities can only be deemed inconsequential within the total context of the copyrighted work.  Lifetime Homes, Inc., 485 F.Supp. at 1321.   

Thus, to those interested on the subject in Fort Lauderdale or anywhere else in Florida, not passing the “substantial similarity” test does not automatically make a person an infringer of copyrights.  Each case must be examined element by element to see if in fact there has occurred a copyright violation.

R. Martin Saenz, Esq. (Partner at The Saenz Law Firm, P.A.)

Parisa Rassoul (Juris Doctor Candidate at the University of Miami and summer intern at The Saenz Law Firm, P.A.)

Do Undocumented Workers Have Rights to Unpaid Overtime Compensation?

In Florida, employers who assume that undocumented workers have no right to overtime compensation are dead wrong.  The Fair Labor Standards Act (commonly known as the “FLSA”) applies to all “employees,” that is, to “any individual employed by an employer.” 29 U.S.C. § 203(e).  As to this specific issue, courts have emphasized that “[i]t is well established that the protections of the Fair Labor Standards Act are applicable to citizens and aliens alike and whether the alien is documented or undocumented is irrelevant (emphasis added).” In re Reyes, 814 F.2d 168, 170 (5th Cir.1987), cert. denied 487 U.S. 1235, 108 S.Ct. 2901, 101 L.Ed.2d 934 (1988); see also Patel v. Quality Inn South, 846 F.2d 700, 702 (11th Cir.1988) (“Congress defined the term ‘employee’ for the purpose of determining who would be covered by the act. It would be difficult to draft a more expansive definition.”); Contreras v. Corinthian Vigor Ins. Brokerage, Inc., 25 F.Supp.2d 1053, 1056 (N.D.Cal.1998); Castellanos-Contreras v. Decatur Hotels, L.L.C., 488 F.Supp.2d 565, E.D.La.,2007.

Similarly, if an employer were to raise the defense that undocumented employees are not entitled to overtime compensation in court, a judge will more than likely rule that the question of whether a person is an illegal immigrant or an undocumented worker is completely irrelevant in an FLSA case. See for instance, Liu, et. al. v. Donna Karan International, Inc., 207 F.Supp2d 191 (S.D. N.Y. 2002) (the defendant made a discovery request for the disclosure of plaintiff garment workers’ immigration status, but the federal court denied the request on the grounds that release of such information is more harmful than relevant). See also Title VII cases: Rivera et al., v. Nibco, 204 F.R.D. 647 (E.D. Cal 2001) (plaintiffs had secured a protective order, which prohibited the defendant from using the discovery process to inquire into plaintiffs’ immigration status).  Liu noted: “Even if the parties were to enter into a confidentiality agreement restricting the disclosure of such discovery…, there would still remain ‘the danger of intimidation, the danger of destroying the cause of action’ and would inhibit plaintiffs in pursuing their rights.” Liu v. Donna Karan Int’l, Inc., 207 F.Supp.2d at 193 (quoting Ansoumana v. Gristede’s Operating Corp.,201 F.R.D. 81 (S.D.N.Y.2001).  See also,Flores v. Albertson’s, Inc., 2002 WL 1163623 (C.D.Cal. April 9, 2002); Topo v. Dhir, No. 01 Civ. 10881, 2002 U.S. Dist. LEXIS 17190 (S.D.N.Y. Sept. 11, 2002); Flores v. Amigon, 233 F.Supp.2d 462 (E.D. N.Y. 2002); In re Reyes, 814 F.2d 168 (5 th Cir. 1987), and Romero v. Boyd Brothers Transportation Co., 1994 LEXIS 8609 (D Ct. Va. 1994).  Similary, in Escobar v. Baker, 814 F. Supp. at 1493, where a plaintiff had refused to answer questions about his status, the court held that the status was irrelevant to claims under the Agricultural Worker Protection Act.  See also, Singh v. Jutla, 214 F.Supp.2d 1056, 2002 U.S. Dist. LEXIS 14978, at 12 (N.D.Cal. Aug. 2, 2002).

Further, an employer is also probably wrong to assume that FLSA coverage of illegal immigrants or undocumented workers is against public policy.  Courts have concluded that the FLSA’s coverage of undocumented aliens is fully consistent with U.S. policy.  In fact, the U.S. Department of Labor (DOL) has stated that it will fully and vigorously enforce the Occupational Safety and Health Act (OSHA), the FLSA, the Migrant and Seasonal Worker Protection Act (AWPA), and the Mine Safety and Health Act without regard to whether an employee is documented or undocumented.”[1] See also, Flores v Albertson’s, Inc, 2002 U.S. DIST. LEXIS 6171, (C.D. Cal. 2002); and Liu,et al. v Donna Karan International, Inc., 207 F. Supp. 2d 191 (S.D.N.Y. 2002).

So, employers who want to avoid unnecessary overtime litigation, which will necessarily turn out to be very expensive, should not waste time in making the losing argument and instead should focus on early settlement of claims by undocumented workers that are in fact owed unpaid overtime compensation.