This article was inspired by one of my Twitter followers, who asked me whether Sprint was infringing upon Verizon's copyright. He was specifically alluding to Verizon's "A Better Network as Explained by Colorful Balls" TV commercial, to which Sprint responded with their own version of a "Colorful Balls" TV commercial.
To establish copyright infringement, plaintiffs must show: 1) ownership of a valid copyright; and 2) unauthorized copying of the copyrighted work. See 17 U.S.C.A. § 101. If a plaintiff holds a valid copyright (here, Verizon does), a juror must be able to establish that: a) the alleged infringer had a reasonable access to the copyrighted work; and b) two works are substantially similar in copyrightable expressions.
Access means that the alleged infringer had a reasonable opportunity to access the copyrighted materials. This is usually pretty straight forward. Would the alleged infringer have had access to the Verizon commercial? I would say that I see those Verizon commercials at least once a day. So if you have a television, the chances are, yes.
Substantial similarity is a little bit more fuzzy. Substantial similarity further breaks down so that it is established when: i) no ordinary observer could find substantial similarity (aka "discerning ordinary observer test"); and ii) the similarity concerns only non-copyrightable elements, such as facts and ideas.
Here, I would say no ordinary observer would find the "total concept and feel" of the commercials substantially similar. Differences in the total concept and feel show an ordinary observer that a general resemblance is insufficient to support a copyright infringement. Because the two commercials diverge dramatically after the first few seconds of the commercial, there is no similarity in the total concept and feel. Additionally, differences in the total concept and feel of the two works outweigh the likeness of the colorful balls, and an ordinary observer would not find the works substantially similar.
In some cases, courts determine whether qualitatively protectable elements quantitatively cross the de minimis threshold to support substantial similarity when applying the discerning ordinary observer test. This means that although expressions are usually protectable under copyright, expressions necessary to convey specific ideas are not qualitatively warranted for copyright protection. For example, fairytales typically include a princess, a prince, and evil step mother. These characters are all "scenés á faìre" that flow from the non-copyrightable concept of a fairytale story, and can be expressed in only so many ways. Similarities portrayed by these types of non-protectable elements rather than an author's creativity do not cross the substantial similarity threshold.