At least, not if Mudville is populated by copyright professors; for the mighty Seventh Circuit has struck out. In Peters v. West (Kanye West, that is, or as LEXIS is now abbreviating the case name, “W.”), the Seventh Circuit, in an opinion written by the highly regarded Judge Wood, has badly bungled the already confused test for establishing a copyright infringement claim. I’ma let you finish, Judge Wood, but Judge Newman had one of the best explanations of this test of all time.

The elements of a prima facie copyright infringement claim have long been confusing to students, lawyers, judges — pretty much everyone. (A brief copyright lesson follows; if this is old hat to you, skip 4 paragraphs down.) Essentially, there are only two elements: ownership and infringement. But the second element is broken down further into a set of sub-elements, and courts have long had difficulty explaining the content and the relationship of the various sub-elements clearly. The basic idea, however, long ago expressed in Second Circuit opinions by Judges Learned Hand and Jerome Frank, is that proving infringement is supposed to be a two-part process: proving that the defendant actually copied material from the plaintiff’s work, and proving that the amount copied passes some sort of threshold for materiality.

There are two significant points of confusion with the test.