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The test is subdivided into the "extrinsic test", wherein a complex analysis is conducted of the concepts underlying the work, and the "intrinsic test", wherein within the judgment of an ordinary person the expression of the works are compared.
The Abstraction-Filtration-Comparison test (AFC) is a method of identifying substantial similarity for the purposes of applying copyright law. In particular, the AFC test is used to determine whether non-literal elements of a computer program have been copied by comparing the protectable elements of two programs.
Despite the plaintiff’s ostinato failing the extrinsic test, the court refused to resolve the intrinsic test as a matter of law, [55] [21] and held that "a reasonable jury could nevertheless conclude that the 'concept and feel' of the two ostinatos were 'intrinsically' similar." [4]
To help find where that point was, the court defined extrinsic and intrinsic tests. In the extrinsic test the work would be analysed by an expert to determine similarities in factual aspects including, "the type of artwork involved, the materials used, the subject matter, and the setting for the subject".
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Brown Bag claimed that the district court did not properly perform legal analysis by using analytical dissection in the intrinsic test for the test of substantial similarity. [1] Although application of "analytical dissection and expert testimony is inappropriate for intrinsic tests," analytical and expert testimony is appropriate for extrinsic ...