ABIM v. Rushford: Similarity Alone Cannot Establish “Actual Copying” Without Non-Speculative Proof of Access, and Unpreserved Remedies Cannot Revive § 412-Barred Statutory Damages Claims

I. Introduction

In American Board of Internal Medicine v. Jaime Rushford (3d Cir. Jan. 16, 2026) (not precedential), the American Board of Internal Medicine (“ABIM”) alleged that Dr. Jaime Salas Rushford infringed ABIM’s copyrights by emailing exam-related material to a test-preparation company, Arora Board Review (“ABR”). ABIM’s theory was that Rushford forwarded (i) handwritten notes purportedly reflecting a conversation with a colleague who had just taken an ABIM exam, and (ii) separate typewritten notes that ABIM claimed reflected ABIM exam content.

The central issues on appeal were whether ABIM produced evidence sufficient to create a genuine dispute of material fact on the element of unauthorized copying—specifically actual copying—and whether ABIM could pursue claims tied to the 2009 copyright registration given the timing limits on statutory damages under 17 U.S.C. § 412.

II. Summary of the Opinion

The Third Circuit affirmed summary judgment for Rushford. The court held ABIM failed to show a genuine dispute of material fact as to actual copying of ABIM’s copyrighted exam questions covered by the 2007 and 2008 registrations. ABIM:

  • did not provide direct evidence of copying;
  • did not establish non-speculative access (including third-party access) to the specific copyrighted questions at issue; and
  • waived any “striking similarity” argument on appeal, preventing the court from considering that doctrine as a substitute for proof of access.

The court also left undisturbed the District Court’s determination that ABIM could not rely on the 2009 registration for statutory damages because its effective date post-dated the alleged infringement and ABIM forfeited any alternative-remedy theory (injunction/nominal damages) by not raising it at summary judgment.

III. Analysis

A. Precedents Cited (and How They Shaped the Decision)

1. Summary judgment framework and issue preservation

  • Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist. and Fed. R. Civ. P. 56(a): The court applied plenary review and reiterated that the movant must show no genuine dispute of material fact and entitlement to judgment as a matter of law, viewing evidence in the nonmovant’s favor.
  • Anderson v. Liberty Lobby, Inc. and Kay Berry, Inc. v. Taylor Gifts, Inc.: Provided the lens for evaluating whether ABIM’s evidence could permit a reasonable factfinder to find for ABIM.
  • Celotex Corp. v. Catrett: Anchored the requirement that ABIM, bearing the burden of proof on copying, must produce evidence sufficient to establish an essential element—here, actual copying.
  • Tri-M Group, LLC v. Sharp and Brown v. Philip Morris Inc.: Controlled the forfeiture analysis. ABIM’s attempt on appeal to recast its 2009-registration claims as seeking injunction/nominal damages failed because it was not preserved and no exceptional circumstances justified review.

2. Copyright elements and scope

  • Harper & Row, Publishers, Inc. v. Nation Enters.: Cited for the “bundle of exclusive rights” under 17 U.S.C. § 106, framing ABIM’s infringement theory as a claim of unlawful reproduction/distribution.
  • Statutory boundaries: 17 U.S.C. § 102 (ideas not copyrightable) and 17 U.S.C. § 107 (fair use) were noted as background limits. Although not dispositive, they underscore that ABIM had to tie its claim to protectable expression (the questions), not medical concepts.
  • 17 U.S.C. § 412: Functionally removed statutory damages for the 2009 registration because registration post-dated the alleged infringement; ABIM’s failure to preserve alternative relief arguments prevented salvaging those claims.

3. The “actual copying” requirement and the three evidentiary paths

  • Dun & Bradstreet Software Servs., Inc. v. Grace Consulting, Inc.: Provided the two-element infringement test (valid copyright + unauthorized copying).
  • Tanksley v. Daniels: Was central. The opinion drew Tanksley’s distinction between the two components of copying: actual copying (did the defendant use plaintiff’s work?) and material appropriation (was protectable expression taken?). The panel resolved the case at the “actual copying” step. Tanksley also supported using “probative similarity” (not “substantial similarity”) for the actual-copying inquiry.
  • The court canvassed sister-circuit authority recognizing three routes to prove actual copying: Gaste v. Kaiserman; Bouchat v. Baltimore Ravens, Inc.; Ty, Inc. v. GMA Accessories, Inc.; Ferguson v. Nat'l Broad. Co.; Peter Letterese & Assocs., Inc. v. World Inst. of Scientology Enters.; La Resolana Architects, PA v. Reno, Inc.. These cases served primarily as persuasive scaffolding for how “access,” “probative similarity,” and “striking similarity” operate.

4. Direct evidence of copying

  • Rottlund Co. v. Pinnacle Corp.: Supplied examples of direct evidence (admissions, witness accounts of the physical act of copying, common errors). The court found ABIM lacked this kind of proof.
  • Nat'l Conf. of Bar Exam'rs v. Multistate Legal Stud., Inc.: Contrasted ABIM’s record with a case featuring robust direct evidence (employees writing down exam content and using it to create simulated exams). ABIM’s evidence, including testimony about a post-exam phone call, did not show the same kind of concrete copying of specific copyrighted questions.

5. Access through third parties (and the prohibition on speculation)

  • Gaste v. Kaiserman: Provided the core access standard: a “reasonable possibility of access,” not a “bare possibility,” and access may not be inferred through speculation or conjecture.
  • Walker v. Kemp (quoting Cottrill v. Spears): Explained the third-party intermediary route—showing the intermediary possessed plaintiff’s work and had concurrent dealings with plaintiff and defendant.
  • Bouchat v. Baltimore Ravens, Inc.: Illustrated access inferred from evidence of actual transmission/receipt practices. The panel distinguished Bouchat because ABIM did not produce comparable evidence that the intermediary (Luna) likely encountered the specific registered questions ABIM sued upon.
  • Treatise support: 4 M. & D. Nimmer, Nimmer on Copyright § 13D.05 (2025) was cited for the proposition that a reasonable opportunity to view is sufficient, but the court found ABIM’s record did not establish that opportunity as to the specific questions.

6. Striking similarity and waiver

  • Gaste v. Kaiserman, and its adoption by several circuits (Bouchat, Ty, Inc., La Resolana Architects, PA), framed the “striking similarity” doctrine as a narrow exception allowing access to be inferred where similarity negates independent creation.
  • The Third Circuit emphasized it has not adopted or rejected the doctrine; critically, ABIM expressly disclaimed striking similarity, so the court treated the issue as waived under Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist..
  • Doe ex rel. Doe v. Lower Merion Sch. Dist. appeared in a footnote to illustrate (via Judge Shwartz’s view) that the same facts can sometimes support multiple elements, even if the majority declined to let similarity substitute for access.

7. The concurrence’s substantial similarity point (not the majority holding)

  • In a concurrence, Judge Shwartz would have found sufficient evidence of “reasonable possibility of access” but agreed summary judgment should still be affirmed for lack of “substantial similarity” (material appropriation).
  • She cited Dam Things from Denmark, a/k/a Troll Co. ApS, v. Russ Berrie & Co., Inc. and relied on Tanksley v. Daniels for the lay-observer, side-by-side comparison test, and on Educ. Testing Servs. v. Katzman for the idea/expression distinction in test questions.
  • She also referenced Hugh v. Butler Cty. Family YMCA for the obligation to view facts and reasonable inferences in the nonmovant’s favor.

B. Legal Reasoning (How the Court Reached Its Result)

1. ABIM lost at “actual copying,” before reaching material appropriation

The panel treated “actual copying” as the dispositive gatekeeping issue. Even if ABIM owned valid copyrights, ABIM still had to show Rushford actually used ABIM’s protected questions. The court found ABIM’s evidence did not meet any recognized route:

  • No direct evidence: Luna’s testimony about discussing exam content did not prove that Rushford copied ABIM’s copyrighted questions from the relevant registrations (or that those questions were on the exam at all).
  • No access + probative similarity: ABIM’s theory of third-party access failed because it could not show more than a bare possibility that Luna’s exam included the specific 46 questions ABIM claimed were registered in 2007/2008 and appeared on a 2009 exam. ABIM did not produce Luna’s exam, nor other evidence about how exams were built or how frequently particular registered questions recur across versions.
  • Similarity could not fill the access gap: The court refused to use Ward’s similarity analysis to infer access because the indirect-proof approach requires both access and probative similarity; collapsing them would effectively eliminate the access requirement.

2. The two sets of emails failed for different evidentiary reasons

  • August 12, 2009 handwritten notes: Even if Luna relayed exam content, ABIM did not show she likely encountered the specific registered questions at issue. The probability was too speculative given thousands of registered questions and only a subset appearing on any given exam.
  • August 13 and August 16, 2009 typewritten notes: ABIM offered no record evidence about where those notes came from. Labels like “Board Questions 2007” were insufficient to establish access to ABIM’s copyrighted questions without evidence tracing provenance to someone with a reasonable opportunity to view the protected work.

3. The 2009 registration claims were functionally removed by § 412 and forfeiture

Because the 2009 registration’s effective date post-dated the alleged infringement, statutory damages were unavailable under 17 U.S.C. § 412. ABIM attempted on appeal to argue it still sought other relief, but the court treated that as forfeited because ABIM did not raise it at summary judgment.

C. Impact (What This Opinion Signals for Future Litigation)

Although designated “not precedential,” the decision is a practical roadmap for copyright plaintiffs—especially test makers and owners of secure examination content—on what is needed to survive summary judgment when the defendant disputes copying:

  • Access must be proven with non-speculative evidence tied to the specific copyrighted material at issue, not just generalized proof that an exam was taken or discussed. Where content banks are large and exam forms vary, plaintiffs should expect to need concrete proof of what was on the particular exam form (or reliable evidence of distribution/recurrence rates).
  • Expert similarity reports may be insufficient without a foundation for access under the access+probative similarity framework, unless the plaintiff squarely invokes and supports a striking similarity theory.
  • Remedy theories must be preserved: when statutory damages are barred by § 412, plaintiffs should develop and preserve alternative remedies (injunctive relief, actual damages, nominal damages where viable) in district court, or risk forfeiture on appeal.
  • Third Circuit remains open on striking similarity: the panel expressly avoided adopting or rejecting the doctrine because ABIM waived it—leaving litigants uncertain and making careful issue-framing on appeal especially important.

IV. Complex Concepts Simplified

  • Actual copying vs. substantial similarity: “Actual copying” asks whether the defendant actually used the plaintiff’s work (often shown by access + similarities). “Substantial similarity” (material appropriation) asks whether what was taken is sufficiently similar to protected expression to be infringing. The majority resolved the case at actual copying; the concurrence would have resolved it at substantial similarity.
  • Access: The plaintiff must show a reasonable possibility the defendant (or a connected intermediary) had an opportunity to view the copyrighted work—not just that it could have happened.
  • Probative similarity: Similarities that suggest copying occurred (used to support actual copying), not necessarily that the taking was legally actionable.
  • Striking similarity: A narrow doctrine (not adopted/rejected in this Circuit here) under which extreme similarity may permit an inference of access because independent creation becomes implausible. ABIM expressly disclaimed it, so the court did not consider it.
  • 17 U.S.C. § 412 (timing of registration): To get statutory damages for infringement, registration generally must occur before infringement begins. If registration comes later, statutory damages are typically unavailable, and plaintiffs must pursue other remedies—if preserved.

V. Conclusion

American Board of Internal Medicine v. Jaime Rushford underscores a stringent evidentiary requirement at summary judgment: a copyright plaintiff must present non-speculative evidence that the defendant had access to—and actually copied—the specific protected work at issue. In large, rotating exam-question banks, generalized allegations of “exam sharing” and expert similarity matching may not suffice absent proof tying the intermediary’s exam exposure to the registered questions sued upon. The decision also highlights the appellate consequences of litigation choices: disclaiming striking similarity forecloses that route, and failing to preserve alternative remedies can make § 412 fatal to claims dependent on statutory damages.