17.16 Compilation (17 U.S.C. § 101)
An owner is entitled to copyright protection of a compilation. A compilation is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.
The owner of a compilation may enforce the right to exclude others in an action for copyright infringement.
Comment
Facts and ideas are not copyrightable, but compilations of facts may be copyrightable even where the underlying facts are not. See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 344 (1991) (holding that factual compilations are sufficiently original to be copyrightable if choices as to selection and arrangement of facts are independently made by compiler); Satava v. Lowry, 323 F.3d 805, 811 (9th Cir. 2003) (“[A] combination of unprotectable elements is eligible for copyright protection only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.”). Copyright in a compilation “extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work.” 17 U.S.C. § 103(b). The term “compilation” includes collective works. See 17 U.S.C. § 101.
For Ninth Circuit cases considering compilations, see Lamps Plus, Inc. v. Seattle Lighting Fixture Co., 345 F.3d 1140, 1146 (9th Cir. 2003) (“[The] mechanical combination of four preexisting ceiling-lamp elements with a preexisting table-lamp base did not result in the expression of an original work of authorship . . . .”); Satava, 323 F.3d at 811 (holding that combination of six unprotectable elements that were “so commonplace in glass-in-glass sculpture and so typical of jellyfish physiology” were not eligible for copyright protection); CDN Inc. v. Kapes, 197 F.3d 1256, 1259-61 (9th Cir. 1999) (examining and reviewing major coin publications to create list of coin prices satisfied requisite level of originality for copyright as compilation).
When a plaintiff alleges infringement of a compilation, it is not enough to show that only part of the work has been copied. “[W]e have repeatedly recognized in this circuit that when dealing with factual compilations, infringement cannot be based on a showing that only a part of the work has been copied. In the context of factual compilations, we have held that infringement should not be found in the absence of “bodily appropriation of expression,” or “unauthorized use of substantially the entire item.” Experian Info. Sols., Inc. v. Nationwide Mktg. Servs. Inc., 893 F.3d 1176, 1186 (9th Cir. 2018) (affirming grant of summary judgment when defendant’s database comprised at most 80 percent of plaintiff’s copyrighted compilation) (quoting Harper House, Inc. v. Thomas Nelson, Inc., 889 F.2d 197, 205 (9th Cir. 1989)). “[T]o be substantially similar, the works must share a ‘pattern, synthesis, or design’ that is both ‘particular’ and ‘coherent.’” Yonay v. Paramount Pictures Corp., 163 F.4th 685, 697 (9th Cir. 2026) (quoting Skidmore ex rel. as Tr. for Randy Craig Wolfe Tr. v. Led Zeppelin, 952 F.3d 1051, 1074 (9th Cir. 2020)).
Revised March 2026
17.17 Copying—Access and Substantial Similarity
Instruction [insert cross reference to the pertinent instruction, e.g., Instruction 17.5] states that the plaintiff [name] has the burden of proving that the defendant [name] copied original elements from the plaintiff [name]’s copyrighted work. The plaintiff [name] can prove that the defendant [name] copied from the work [by proving by a preponderance of the evidence that the defendant [name] had access to the plaintiff [name]’s copyrighted work and that there are substantial similarities between the defendant [name]’s work and original elements of the plaintiff [name]’s work] [by proving by a preponderance of the evidence that there is a striking similarity between the defendant [name]’s work and the plaintiff [name]’s copyrighted work]. If the plaintiff [name] fails to prove that the defendant copied the plaintiff [name]’s work, your verdict should be for the defendant [name].
This instruction explains how a plaintiff can satisfy the burden of proving the second requirement set forth in Instruction 17.5: that “the defendant copied original expression from the copyrighted work.” The Ninth Circuit has historically described this test as having two elements: “access” and “substantial similarity.” See, e.g., Sid & Marty Krofft Television Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157, 1162 (9th Cir. 1977); Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1018 (9th Cir. 1985); Three Boys Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir. 2000); Antonick v. Elec. Arts, Inc., 841 F.3d 1062, 1065 (9th Cir. 2016); see also Comment to Instruction 17.1 (Preliminary Instruction—Copyright). In some cases, the Ninth Circuit has described the elements as “copying” and “unlawful appropriation,” borrowing the Second Circuit’s description from Arnstein v. Porter, 154 F.2d 464, 468 (2d Cir. 1946). See Rentmeester v. Nike, Inc., 883 F.3d 1111, 1117 (9th Cir. 2018) (acknowledging that “our cases have not always made this point explicit,” then citing Arnstein); Skidmore v. Led Zeppelin, 952 F.3d 1051, 1064 (9th Cir. 2020) (en banc) (citing Rentmeester). Both Rentmeester and Skidmore applied the elements of the Arnstein test in similar ways to access and substantial similarity. See Rentmeester, 883 F.3d at 1117 (analyzing the “copying” element by discussing “access” and the “unlawful appropriation” element by discussing “substantial similarity”); Skidmore, 952 F.3d at 1064 (“[T]he hallmark of ‘unlawful appropriation’ is that the works share substantial similarities.”) (emphasis deleted). Cases since Skidmore have continued to refer to the copying test as requiring access and substantial similarity. See, e.g., Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., 52 F.4th 1054, 1084 (9th Cir. 2022); Gray v. Hudson, 28 F.4th 87, 96 (9th Cir. 2022); Woodland v. Hill, 136 F.4th 1199, 1210 (9th Cir. 2025) (rejecting plaintiff’s theory that allegations of copying of twelve photos showed serial infringement and “raise[d] an inference of copying”).
Access and substantial similarity are each explained further in the following two instructions. See Instruction 17.18 (Copyright Infringement—Copying—Access Defined), and 17.19 (Substantial Similarity—Extrinsic Test; Intrinsic Test).
If it can be determined that either access or substantial similarity are lacking in a
particular case, the remaining prong need not be addressed; failure on either prong is sufficient
for failure of the claim. See Gray v. Hudson, 28 F.4th 87, 96 (9th Cir. 2022). “[I]n the absence of any proof of access, a copyright plaintiff can still make out a case of infringement by showing that the songs were ‘strikingly similar.’” Three Boys Music Corp. v. Bolton, 212 F.3d 477, 485 (9th Cir. 2000) (citing Smith v. Jackson, 84 F.3d 1213, 1220 (9th Cir. 1996), and Baxter v. MCA, Inc., 812 F.2d 421, 423, 424 n.2 (9th Cir. 1987)), overruled on other grounds by Skidmore v. Led Zeppelin, 952 F.3d 1051, 1064 (9th Cir. 2020) (en banc). “[S]triking similarity shows that the similarities between the two works are due to copying rather than coincidence, independent creation, or prior common source.” Skidmore, 952 F.3d at 1064 (quotation marks, ellipsis, and citation omitted).
Supplemental Instruction
[If the defendant has submitted evidence that a similarity between the infringed and the allegedly infringing work is not due to the defendant’s copying, replace the instruction with the following.]
The plaintiff [name] has the burden of proving that the defendant [name] copied original elements from the plaintiff [name]’s copyrighted work. If the plaintiff [name] [proves by a preponderance of the evidence that the defendant [name] had access to the plaintiff [name]’s copyrighted work and that there are substantial similarities between the defendant [name]’s work and original elements of the plaintiff [name]’s work] [proves by a preponderance of the evidence that there is a striking similarity between the defendant [name]’s work and the original elements of the plaintiff [name]’s copyrighted work] then there is a presumption that the defendant [name] copied from the plaintiff [name]’s copyrighted work. If the plaintiff [name] fails to prove that the defendant [name] copied from the plaintiff [name]’s work, your verdict should be for the defendant [name].
The defendant [name] may rebut the presumption of copying. If you find that the defendant [name] has proved by a preponderance of evidence that the similarities between the defendant [name]’s work and the copyrighted work are due to [alternative case of similarity], your verdict should be for the defendant [name].
A presumption of copying arises if the plaintiff proves that the defendant had access to the plaintiff’s work and that there is a substantial similarity between the original elements of the infringed and alleged infringing works, or if there is a striking similarity between the infringed and alleged infringing works that raises the inference of access. Three Boys, 212 F.3d at 486 (“By establishing reasonable access and substantial similarity, a copyright plaintiff creates a presumption of copying.” (citing Granite Music Corp. v. United Artists Corp., 532 F.2d 718, 721 (9th Cir. 1976))). The defendant may rebut the presumption through proof of independent creation. Id.; cf. Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 741 (9th Cir. 1971) (“It is true that defendants had access to plaintiff’s [copyrighted] pin and that there is an obvious similarity between plaintiff’s pin and those of defendants. These two facts constitute strong circumstantial evidence of copying. But they are not conclusive, and there was substantial evidence to support the trial court’s finding that defendant’s pin was in fact an independent creation.”) (citations omitted); Skidmore, 952 F.3d at 1064 (holding that “probative or striking similarity shows that the similarities between the two works are due to copying
rather than coincidence, independent creation, or prior common source”) (quotation marks, ellipsis, and citation omitted).
Revised September 2025