Substantial Similarity in the Ninth Circuit
Rodger R. Cole · Santa Clara Law Digital Commons (Santa Clara University) · 1995
After nearly seven years, 1 the Apple-Microsoft litigation over personal computer graphic user interfaces came to an end in February 1995 when the Supreme Court denied certiorari to Apple in the Apple Computer, Inc. v. Microsoft Corporation decision of the Court of Appeals for the Ninth Circuit. 2 The decision provides another factual example for attorneys seeking insight into the analysis of the Court of Appeals for the Ninth Circuit on copyright issues relating to 'substantial similarity' and 'look and feel'.After Apple Computer, if a claim for copyright protection is based on the "look and feel" of individual unprotected elements of expression, the protection given the copyright is "thin" and infringement will be found only if the two expressions are "virtually identical."3 The Ninth Circuit held that the district court had "properly identified the sources of similarity . .., determined which were licensed, distinguished ideas from expression, and decided the scope of Apple's copyright by dissecting the unauthorized expression and filtering out unprotectable elements" and "correctly concluded that iUicit copying could occur only if the works as a whole are virtually identical."4 I. BACKGROUNDThe Apple Macintosh's graphic user interface was responsible for much of the commercial success of that computer in the 1980s.'After the release of Microsoft Windows 1.0 in 1985, Apple notified Microsoft of its belief that Windows 1.