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A step-by-step way to investigate resemblance
1. Preserve each work and its context
Save the original image or game capture where lawful. Record the URL or publication location, the date you accessed it, and any surrounding credits or captions. If you are the creator, keep original files, layered drafts, dated exports, design notes and communications, because they can help establish chronology and access. Never edit your only copy of a file. This is practical evidence housekeeping, inferred from how courts weigh access and independent creation. No source prescribes a universal checklist, and no single record proves copying.
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2. Pin down exactly what you are comparing
A concept-art sheet, an in-game model, a promotional illustration, a screenshot and a physical product are different kinds of work. Note whether you are comparing like with like. Check whether camera angle, lighting, damage states, animation or image compression could explain apparent differences or hide real ones.
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Build a side-by-side comparison and describe specifics instead of saying “it feels the same”. Useful points include:
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- silhouette and overall proportions;
- placement of wings, engines, cockpit and weapon mounts;
- distinctive surface details such as panel patterns, markings and greebling;
- colour placement;
- for illustrations, the composition: framing, pose, background and lighting.
The U.S. Copyright Office, in its guidance for visual and graphic artists, identifies composition, depiction and the use of design elements as places where visual creativity shows up. Write down differences as well as similarities. A list containing only matches is not a fair comparison.
4. Filter out ideas, function and genre conventions
For each shared feature, ask whether it is:
- an idea, such as “a spaceship”, “a fighter role” or “a pirate faction look”;
- dictated by function or technical constraints, such as engines at the rear of a thrust-driven craft;
- in the public domain;
- a commonplace convention of the genre.
WIPO’s “Video games and IP” overview (2012) describes standard elements needed for a genre as scènes à faire. Features that fall in these buckets carry little or no weight as evidence of copying.
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5. Look at the combination, not only the parts
Several individually familiar features can be arranged in a distinctive way, and that arrangement can matter. A 2017 Southern District of New York opinion in Horizon Comics Productions v. Marvel Entertainment discusses filtering unprotectable elements and considering whether similarities come from original aesthetic choices, including the possibility that a distinctive combination counts. Use that as a way of thinking, not a legal formula. Equally, don’t dismiss a whole image just because every component has precedents.
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Establish when the earlier work became public and whether the later creators could plausibly have encountered it. Then look for evidence of an independent route: sketches, reference boards, iteration history, or a shared source of inspiration. In some U.S. analyses, access plus substantial similarity can support an inference of copying. Independent creation can still explain strong resemblance, and the exact formulation varies by court and by the stage of the case. The Fifth Circuit’s 2025 opinion in Huffman v. Activision Publishing discusses access, evidence of independent creation and the high bar for “striking similarity”, where resemblance alone is argued to be so close that independent creation is implausible.
7. Keep the conclusion proportionate
A fair preliminary finding names the specific features that warrant closer review. If a real commercial dispute is involved, talk to qualified counsel in the relevant jurisdiction before you accuse anyone, file a takedown or post a public claim.
What copyright can protect and what stays free to use
U.S. copyright covers original works fixed in a tangible medium, including pictorial, graphic, sculptural and audiovisual works. The statute draws the key line in 17 U.S.C. § 102(b): “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”
For ship design and game art, the protectable layer is the creator’s original expression: particular choices of shape, depiction, composition, detail and arrangement. The Copyright Office’s Compendium (Third Edition, 2014, administrative guidance) says games can contain copyrightable artwork and audiovisual material, while the underlying game idea, play and scoring method are not copyrightable. It also tells claimants to identify the specific authorship they claim.
In practice, a generic spaceship, a standard fighter silhouette, or a functionally dictated engine layout does not become exclusive because one game used it first. A distinctive selection and arrangement of those familiar elements is a different matter.
Independent reader supportYour contribution helps us test, update, and keep practical guides available for everyone.Copyright is not the only kind of IP involved
| Type | What it covers in this context |
|---|---|
| Copyright | Original artwork, models and audiovisual expression (per WIPO’s overview and the U.S. Copyright Office) |
| Trademark | Brand identifiers such as names and logos (WIPO) |
| Patent | Qualifying functional technology (WIPO) |
| Vessel hull designs | A specialised U.S. regime for certain original hull and deck designs of real watercraft, under 17 U.S.C. Chapter 13. The sources reviewed don’t establish that it reaches fictional ship models or digital game art, so don’t assume it does. |
How U.S. courts approach resemblance
No reviewed source sets a visual score or a “percentage copied” threshold, so treat any such figure you see with suspicion. In the Ninth Circuit’s September 2025 opinion in Biani v. Showtime Networks, the extrinsic test is an objective look at similarities in protectable expression after filtering out ideas, public-domain material and scènes à faire. The intrinsic test is a more holistic comparison left to the fact-finder. That describes one court’s framework and the posture of one case. It is not a rule for other circuits or other countries, so identify the controlling law before relying on any of these opinions.
Quick Recap
Red flags and weak signals
| Stronger reason for closer review | Weak or insufficient on its own |
|---|---|
| Matching idiosyncratic details, such as an unusual panel pattern or an odd asymmetry | Same genre, role or faction style |
| Same arrangement of several non-obvious choices | A similar silhouette built from function-driven parts |
| Earlier work was public, and the later creators plausibly saw it | Access alone |
| No process records showing an independent route | One resemblance in a single screenshot angle |
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