I
William L. Dawson possesses a valid copyright of an arrangement of the spiritual “Ezekiel Saw De Wheel.” Dawson, over the years, has sold many copies of his arrangement. In 1980, Gilbert M. Martin composed an arrangement of the spiritual. That same year, Martin granted Hinshaw Music, Inc. (“Hinshaw”), the exclusive rights to publish, distribute, and sell his arrangement. Martin agreed to indemnify Hinshaw for any loss resulting from infringement of copyright. Dawson brought suit against Hinshaw and Martin, alleging copyright infringement under 17 U.S.C. §§ 501 et seq. After a bench trial, the district court held for the defendants.
The district court began its analysis by correctly noting that, because of the difficulties in proving copyright infringement by direct evidence, the law has established a burden shifting mechanism whereby plaintiffs can establish a
prima facie
case of infringement by showing possession of a valid copyright, the defendant’s access to the plaintiff’s work, and substantial similarity between the plaintiff’s and defendant’s works.
See Concrete Machinery Co. v. Classic Lawn Ornaments, Inc.,
As correctly noted by the district court, there are two prongs to the substantial similarity inquiry. The plaintiff must establish substantial similarity of both the ideas of the two works and of the expression of those ideas.
1
See, e.g., Litchfield,
*733
However, the district court ruled against Dawson on the second prong of the substantial similarity inquiry, holding that Dawson had not shown that the expression of ideas in Martin’s work was substantially similar to the expression of ideas in Dawson’s work. The court applied what has come to be known as the ordinary observer test, sometimes referred to as an “intrinsic” or “subjective” test, inquiring into the “total concept and feel” of the works
without
the aid of expert testimony.
See, e.g., Litchfield,
II
We direct our attention to the district court’s characterization of the ordinary observer test as an ordinary lay observer test. We are well aware of the existence of that characterization in the case law. However, as demonstrated below, obedience to the undisputed principles of copyright law and the policy underlying the ordinary observer test requires a recognition of the limits of the ordinary lay observer characterization of the ordinary observer test. Those principles require orientation of the ordinary observer test to the works’ intended audience, permitting an ordinary lay observer characterization of the test only where the lay public fairly represents the works’ intended audience.
A
Arnstein v. Porter,
Consistent with its economic incentive view of copyright law, the
Arnstein
court concluded that “the question, therefore, is whether defendant took from plaintiff’s works so much of what is pleasing to the ears of lay listeners,
who comprise the audience for whom such popular music is composed,
that defendant wrongfully appropriated something which belongs to plaintiff.”
Although Arnstein established a sound foundation for the appeal to audience reaction, its reference to “lay listeners” may have fostered the development of a rule that has come to be stated too broadly. Under the facts before it, with a popular composition at issue, the Arnstein court appropriately perceived “lay listeners” and the works’ “audience” to be the same. However, under Arnstein’s sound logic, the lay listeners are relevant only because they comprise the relevant audience. Although Arnstein does not address the question directly, we read the case’s logic to require that where the intended audience is significantly more specialized than the pool of lay listeners, the reaction of the intended audience would be the relevant inquiry. In light of the copyright law’s purpose of protecting a creator’s market, we think it sensible to embrace Arnstein’s command that the ultimate comparison of the works at issue be oriented towards the works’ intended audience.
Our reading of
Arnstein
brings our analysis into line with
Sid & Marty Krofft Television v. McDonald’s Corp.,
The present ease demands an even more intrinsic determination because both plaintiff’s and defendants’ works are directed to an audience of children. This raises the particular factual issue of the impact of the respective works upon *735 the minds and imaginations of young people.
We suspect that courts have been slow to recognize explicitly the need for refining the ordinary observer test in such a way that it would adopt the perspective of the intended audience because, in most fact scenarios, the general lay public fairly represents the works’ intended audience. As a result, “a considerable degree of ambiguity exists in this area; courts have not always made it apparent whether they were using a member of a specific audience, or simply an average lay observer as their spectator.”
Role for Audience Reactions
at 386. Fortunately, the advent of computer programming infringement actions has forced courts to recognize that sometimes the non-interested or uninformed lay observer simply lacks the necessary expertise to determine similarities or differences between products. In
Whelan Associates v. Jaslow Dental Laboratory,
We believe the Whelan analysis further supports our view. As Whelan reveals, only a reckless indifference to common sense would lead a court to embrace a doctrine that requires a copyright case to turn on the opinion of someone who is ignorant of the relevant differences and similarities between two works. Instead, the judgment should be informed by people who are familiar with the media at issue. See Note, Whelan Associates v. Jaslow Dental Laboratory: Copyright Protection for the Structure and Sequence of Computer Programs, 21 Loy.L.A.L.Rev. 255, 294 (1987).
In addition to conforming to the policy underlying the ordinary observer test and the doctrine that has developed for child product and computer cases, our view that the ordinary observer inquiry must adopt the perspective of the works’ intended audience finds abundant direct support in the copyright literature. For example, our conclusion tracks closely the thesis of Role of Audience Reactions, which argues that a precise audience test should replace the average lay observer test which is “obsolete when dealing with works aimed at a distinguishable audience group.” The note intelligently observes:
[I]n cases dealing with works of broad public appeal, the best representative of the audience may in fact be the average *736 lay person. But in all other cases identification of the audience, and the subsequent decision about whether to narrow the group of average lay observers to this particular audience, should enter into the determination of substantial similarity.
Id. at 387. Another commentary has noted:
If, as Amstein suggested, copyright law should protect the plaintiffs interest in potential financial returns, the ultimate test for infringement should consider specifically the response of the market from which those returns would derive.
Role of the Expert Witness at 144-45. Still another has written:
Most often courts speak of the ordinary observer test. This [commentary] adopts the audience test for terminology to emphasize the fact that when a work appeals to a particular audience, its reaction is a more valid indicator of substantial similarity than that of the ordinary observer.
Recent Development, 36 Vand.L.Rev. 1277, 1290 n. 91 (1983). Professor Nimmer has described the law as being, “If the works in issue are directed to a particular audience, then the ‘spontaneous and immediate’ reaction of that audience is determinative.” 3 M. Nimmer & D. Nimmer, Nimmer on Copyright § 13.03[E], at 13-62.4 n. 202 (1989). Another commentary has nicely abstracted from the computer cases the conclusion we reach in this case as follows:
[The ordinary observer test] assumes that if the ordinary person in the position of the intended audience for the works in question would recognize [the two works] as substantially similar, then protectable expression has been infringed. Differences that might be discoverable with ‘meticulous scrutiny’ are not significant if the average member of the typical audience ‘would be disposed to overlook’ those differences.
(Emphasis in original.)
When dealing with computer programs, care may have to be taken in choosing the ‘ordinary observer.’ The average judge or jury cannot read source code or appreciate the ‘total concept and feel’ of a program. Thus, it is necessary to rely on the reaction of persons who do typify the members of the intended audience.
(Emphasis added.) Clapes, Lynch & Stein-berg, Silicon Epics and Binary Bards: Determining the Proper Scope of Copyright Protection for Computer Programs, 34 U.C.L.A. L.Rev. 1493, 1571 (1986-87).
B
Under the foregoing logic, we state the law to be as follows. When conducting the second prong of the substantial similarity inquiry, a district court must consider the nature of the intended audience of the plaintiff’s work. If, as will most often be the case, the lay public fairly represents the intended audience, the court should apply the lay observer formulation of the ordinary observer test. However, if the intended audience is more narrow in that it possesses specialized expertise, relevant to the purchasing decision, that lay people would lack, the court’s inquiry should focus on whether a member of the intended audience would find the two works to be substantially similar. Such an inquiry may include, and no doubt in many cases will require, admission of testimony from members of the intended audience or, possibly, from those who possess expertise with reference to the tastes and perceptions of the intended audience.
We recognize the appeal of blind adherence to the lay observer characterization of the ordinary observer test even where the intended audience possesses specialized knowledge and such adherence is therefore theoretically inappropriate. The lay observer test spares a court the burden of inquiring into, and drawing conclusions regarding, the nature of the works’ intended audience. That burden would be a substantial one if our holding were read as an invitation to every litigant in every copyright case to put before the court the seemingly unanswerable question of whether a product’s audience is sufficiently specialized to justify departure from the lay characterization of the ordinary observer test. *737 Although the existence of difficulties attendant to application of a test that a doctrine compels is an insufficient reason not to use the test, concerns about copyright actions becoming unwieldy are legitimate.
We therefore believe that, in any given case, a court should be hesitant to find that the lay public does not fairly represent a work’s intended audience. In our opinion, departure from the lay characterization is warranted only where the intended audience possesses “specialized expertise.” We thereby pay heed to the need for hesitancy when departing from the indiscriminately selected lay public in applying the test. To warrant departure from the lay characterization of the ordinary observer test, “specialized expertise” must go beyond mere differences in taste and instead must rise to the level of the possession of knowledge that the lay public lacks.
We believe that, especially given the explicitness of our holding, “intended audience” should supplant “ordinary observer” as the label for the appropriate test. The new label is appropriate not because we have changed the test, but because the imprecision of the old label leads to application of an ordinary lay observer test even where such a test is inappropriate. However, mindful of the harm that has resulted from reliance upon labels in this doctrinal area, we emphasize that our clarification of the doctrine is motivated by the policies underlying the doctrine, namely, the theoretical propriety of looking to the effect of the defendant’s work on the plaintiff’s market and the practical evil of having an unaided uninformed finder of fact deciding the crucial issue in a case. We intend to make the rule more precise, not to change it.
Ill
In light of our statement of the law in Section II, we think remand is necessary because the district court did not inquire into whether the audience of Dawson’s work possessed specialized expertise that the lay public lacks and, therefore, whether the general, undifferentiated lay public fairly represents the intended audience of Dawson’s arrangement. It is true that the case with which we contend involves music and courts routinely, and properly, apply the ordinary lay observer test to music eases.
See, e.g., Baxter v. MCA,
Given the need to measure substantial similarity by the reaction of the ordinary observer within the intended audience, Dawson’s failure to enter into evidence recordings of performances of the two arrangements is not fatal to his case. Use of a recording is obviously appropriate where a plaintiff sells recordings for the public to buy. However, Dawson does not sell recordings. He apparently sells sheet music arrangements to those who may make a purchasing decision on the basis of the sheet music. Although the district court’s heavy reliance upon Dawson’s failure to present a recording of the arrangements made sense in light of its application of the ordinary lay observer test, the conclusion would not make sense if it were the case that the audience for Dawson’s spiritual arrangement had specialized expertise rele *738 vant to its purchasing decision. There is no reason for Dawson to submit recordings to persuade a lay listener that the arrangements are substantially similar if the lay listener’s conclusion would not reflect the response of the choral directors who would purchase one arrangement over another on the basis of the arrangement’s sheet music.
Furthermore, it may be that recordings of performances of the arrangements would not only be irrelevant but could indeed hinder the relevant inquiry. It may be that the sound of the performance of an arrangement is a function of not only the arrangement itself, but of the choral director’s interpretation of the arrangement. Thus, differences and similarities in the sound of performances of two arrangements may represent something other than differences and similarities in the arrangements themselves. In addition, comparison of two recordings of performances of the arrangements would fail to take account of the different interpretations to the arrangements that purchasers intended to inject, rendering such a comparison even more misleading. These problems, of course, are not presented when actual recordings are at issue and therefore further distinguish the problems posed by spiritual arrangements as compared to popular recordings.
The district court did not make explicit factual findings on the issues of what the intended audience was and whether members of that audience have specialized expertise relevant to their purchasing decision. We offer our suspicions merely as explanations for why remand is necessary, not as predictions of the outcome of factual inquiry. Therefore, we decline to remand with instructions that the district court define an audience distinct from the ordinary lay observer. Instead, we remand with instructions that the district court determine whether definition of a distinct audience is appropriate in this case. Assuming such a definition is appropriate, the district court should then take additional evidence to determine whether members of the intended audience would find the arrangements to be substantially similar.
The facts of this case present a particularly inviting context in which to refine the ordinary observer test by requiring that the ordinary observer be the intended audience. To say the least, Dawson's claim is not bogus. The district court found extensive similarities between Dawson’s and Martin’s works. The logic of traditional copyright doctrine, as reflected in the case law and the consensus of the commentaries that have addressed the matter, compels our result. To hold otherwise would be to allow the imprecise “ordinary lay observer” label to effect a betrayal of the fundamental purposes of copyright doctrine and the substantial similarity test.
Notes
. Some courts use a different set of labels for the two-prong inquiry, referring to the first prong as establishment of copying and the second prong as establishment of illicit appropriation.
See, e.g., Concrete Machinery,