Trends in Substantial Similarity in the Ninth and Second Circuits

The panel will explore the recent trend, primarily in the Ninth Circuit, regarding the suitability of ruling on the substantial similarity between literary works at the pleadings stage (as well, to some degree, as disposition at summary judgment). In a recent slew of apparently contradictory opinions involving infringement claims against films and TV shows such as “The Shape of Water”, “Pirates of the Caribbean”, “Inside Out”, and “Empire”, the Ninth Circuit Court of Appeals has left the public and practitioners confused about when, if ever, it is appropriate to dispose of infringement claims at the pleadings stage. The panel will explore the history of how the courts have traditionally addressed infringement of literary works at the pleadings stage, will explore the latest trends, especially in the Second and Ninth Circuits, and will perhaps attempt to make some sense of the conflicting decisions.