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The test for determining substantial similarity is whether the ordinary observer, unless he set out to detect the disparities between two works, would be disposed to overlook them, and regard their aesthetic appeal as the same.
Appellant Barbara Horgan, the executrix of the renowned choreographer George Balanchine, was denied injunctive relief enjoining appellees from publishing a book containing photographs of dancers performing Balanchine’s choreography. The district court held that still photographs could not infringe the decedent's copyright because the choreography could not be recreated from the photographs. The court also found that the estate had delayed unduly in seeking relief. Appellant challenged the decision.
Could still photographs of a ballet infringe the copyright on the choreography for the ballet?
The court reversed the decision of the district court, holding that the correct standard was whether the photographs were substantially similar to the choreographed works. The fact that the allegedly infringing work was in a different medium was not dispositive of the question. The court held that appellant's alleged delay in suing should not bar injunctive relief when the lower court was not clear in examining the question of when a practical need to sue arose. The court remanded in order for the correct standard to be applied.