Tabberone is pronounced tab ber won not tay ber own

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This information is taken directly from the court opinion. It is not taken out of context nor is it altered.

From Country Kids v. Sheen, 77 F.3d 1280 (10th Cir 1996) The traditional test for substantial similarity is "whether the accused work is so similar to the plaintiff's work that an ordinary reasonable person would conclude that the defendant unlawfully appropriated the plaintiff's protectible expression by taking material of substance and value." Atari, 672 F.2d at 614 (citation omitted). The essence of this test is whether the "ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same." Peter Pan Fabrics, 274 F.2d at 489. The touchstone of the analysis is the "overall similarities rather than the minute differences between the two works." Atari, 672 F.2d at 618. In this context, we believe the "ordinary observer" test is an appropriate method for the court to use in its comparison analysis. See, e.g., Concrete Mach. Co., 843 F.2d at 609 (after establishing copying of protected aspects, "the trier of fact can then assess pursuant to the 'ordinary observer' test whether there is substantial similarity between the protected expression and the accused work"); Atari, 672 F.2d at 614 ("the ordinary observer test, in application, must take into account that the copyright laws preclude appropriation of only those elements of the work that are protected by the copyright").