Does the holistic test's liability scale with the work's length — is the free-pair gift safer in longer works?

Whether the canary-author's liability under the total concept and feel test scales with the work's length — short works where the sentence-level tie is a large fraction of the "feel" carry more risk than long works where the tie is one thread in a larger fabric.

The total concept and feel test is holistic and ordinary-observer, and the ordinary observer registers "feel" at the level of scenes and characters, not conjunction choice. The test, introduced in Roth Greeting Cards v. United Card Co (1970), asks whether the total concept and feel of one work is substantially similar to another, judged by the subjective response of an ordinary observer. The Ninth Circuit in Sid & Marty Krofft v. McDonald's (1977) split it into an extrinsic test (analytic dissection, expert testimony, decided as a matter of law) and an intrinsic test (the ordinary observer's response to the expression, no expert testimony). The intrinsic test is the one the question targets: it asks the ordinary observer to look at the work as a whole, and the ordinary observer's "feel" registers at the level of plot, character, scene, and atmosphere — not the grammatical structure of individual sentence pairs. So the question is whether a semantically bound pair in a short work (where two sentences are a large fraction of the whole) carries more holistic-test risk than the same pair in a long work (where it is one thread in a larger fabric) (read 2026-06-20 — Wikipedia: Substantial similarity (read 2026-06-20)).

Substantial similarity has been found where the portion copied was small but constituted the "heart" of the work — the proportion matters, but centrality can override it. Courts look not only at the proportion of duplication in comparison to the relative size of the works, but also at the creativity of the copied material, its use in both works, and its centrality to either. The "heart" doctrine means that even a small portion can be substantially similar if it is the core of the work. Applied to the length question: in a short work (a two-paragraph definition), the semantically bound pair is both a large proportion and the heart — the holistic test would see the pair as the work's feel. In a long work (a monograph), the same pair is a small proportion and likely not the heart — unless the definition is the work's central contribution, in which case the "heart" doctrine resurrects the risk regardless of length (read 2026-06-20 — Wikipedia: Substantial similarity — heart of the work (read 2026-06-20)).

The intrinsic test has been criticised for extending copyright into ideas — the risk is highest where the work is short and the sentence-level tie is a large fraction of the "feel." The Wikipedia article notes that "particularly the intrinsic test has met criticism as extending copyright beyond the protection of expression into the protection of ideas." If the intrinsic test protects the feel of a semantically bound pair (the sense that these two sentences belong together), it is protecting a logical relation — an idea, not an expression. This risk is most acute in short works: where the pair is the work, the holistic test cannot distinguish the expression from the idea it carries, because there is nothing else to dilute the pair's felt presence. In a long work, the pair is one element among many, and the holistic test can see the larger expression (the argument, the narrative) as the work's feel, with the pair as one thread — reducing (but not eliminating) the risk that the pair's semantic tie is read as protectable expression (read 2026-06-20 — Wikipedia: Substantial similarity (read 2026-06-20)).

The Ninth Circuit's expanded extrinsic test partially rescues the distinction — but the rescue is analytic, not holistic. In Brown Bag Software v. Symantec, the Ninth Circuit expanded the extrinsic test to include analysis of expression, not just ideas — making the extrinsic test do some of the dissection work the intrinsic test would otherwise skip. This means the syntactic-vs-semantic distinction can be raised at the extrinsic stage (where the court dissects), even if the intrinsic stage (where the jury compares the whole) might not see it. So the length effect operates at the intrinsic stage: in a short work, the extrinsic dissection may protect the pair by recognising the grammatical independence, but the intrinsic jury may still see the semantic tie as the work's feel; in a long work, the intrinsic jury is less likely to register the pair at all. The rescue is partial: the extrinsic stage can raise the distinction, but the intrinsic stage's holistic gaze is where the length effect lives (read 2026-06-20 — Wikipedia: Substantial similarity — Brown Bag Software (read 2026-06-20)).

The honest state. The canary-author's free-pair gift (semantic binding, high detection, no entitlement cost under the merger doctrine) becomes a potential liability under the total concept and feel test, and the liability scales with the work's length — but not as a clean rule. In a short work, the semantically bound pair is both a large proportion and likely the heart, so the intrinsic test's holistic gaze sees the pair as the work's feel, and the risk that the semantic tie is read as protectable expression is highest. In a long work, the pair is a small proportion and likely not the heart, so the intrinsic test registers the larger expression as the feel, and the pair's semantic tie is one thread in a fabric — reducing the risk. But the "heart" doctrine means that if the definition is the work's central contribution (the coined term's first definition in a monograph that is about the term), the risk resurrects regardless of length: the small portion that is the heart is still substantially similar. The free-pair gift is safer in longer works where the pair is not the heart, but the canary-author's craft is definition-writing, and a definition is always a candidate for the heart of the work it introduces.

uncertain: whether any real case has applied the total concept and feel test to a sentence-level semantic tie in a work of any length — the literature describes the test's application to characters, plots, and visual works, not to the grammatical structure of individual sentence pairs. The length effect is a prediction from the test's holistic logic, not a finding from case law.