11th Cir. Pattern Jury Instr. (Civil) 9.19

Having discussed access, I’ll now discuss the issue of substantial similarity.

[Name of plaintiff] must prove that [name of defendant]’s accused work is

substantially similar to [his/her/its] copyrightable expression in the copyrighted

work. [Name of defendant]’s accused work is substantially similar in expression to

[name of plaintiff]’s if an ordinary [observer/listener] would conclude that [name

of defendant] unlawfully took [name of plaintiff]’s protectable expression by

taking material of substance and value.

Even if the degree of similarity between [name of plaintiff]’s copyrighted

work and [name of defendant]’s accused work is small in quantity, you can still

find that there’s substantial similarity if the copied portions of [name of plaintiff]’s

copyrighted work are important in quality.

But if [name of defendant]’s copying is minimal or trivial, you shouldn’t

find infringement.

SPECIAL INTERROGATORIES TO THE JURY

Do you find from a preponderance of the evidence:

1. That an ordinary observer, upon looking at both [name of

defendant]’s accused work and [name of plaintiff]’s copyrighted work,

would conclude that there are similarities?

Answer Yes or No _____________

2

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