Even where copying has been conceded, however, “no legal consequences will follow from that fact unless the copying is substantial”. Determining whether a work is substantially similar is a complicated endeavor. To do so, courts have used the “ordinary observer” or “overall look and feel” test, under which two works will be substantially similar if a “reasonable, ordinary observer, upon examination of the two works, would ‘conclude that the defendant unlawfully appropriated the plaintiff’s protectable expression’.”

Both similarities and differences can be considered in determining “substantial similarity”. However, “if ‘the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them'”, then the two works will still be considered substantially similar. For example, in Shine v. Childs, the court noted that One World Trade Center’s design, while not similar to an architecture student’s preliminary design, could be found to be substantially similar to the student’s more detailed “Olympic Tower” design despite differences in the number of sides of each tower that twist, the direction of the twist, and the shape of each tower’s ground floor because those differences could be overlooked due to similarities such as the form of the towers and the pattern covering the façade of the towers. Likewise, the court in Bonner v. Dawson held two buildings to be substantially similar, noting that “[a]lthough there are certain differences between the two buildings such as the building’s size, interior layout, exterior stripe color, and some window variations, the overall architectural concept and designs of each of the two buildings is overwhelmingly similar.”

Determining whether infringement has occurred is not a simple undertaking. However, the more similar various aspects of a work are, the more likely a work will be considered to have the same “overall look and feel” and therefore be infringing. Characteristics that courts have included in their analysis include frame footprint and dimensions, layout of floor plan, number of rooms, wall height, roof pitch and dimensions, overall square footage, number and placement of windows, façade style, and silhouette of the building.

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