Once the unprotectable elements have been filtered out, the two works can be compared to determine whether they are substantially similar, a question of fact. We have previously held that the question for the jury in substantial-similarity cases is “ ‘whether a lay observer would consider the works as a whole substantially similar to one another.’ ” Murray Hill v. Twentieth Century Fox, However, as have several of our sister circuits, we have also noted that it is appropriate to modify this inquiry for situations in which a smaller fragment of a work has been copied literally, but not the overall theme or concept-an approach referred to in the literature as “fragmented literal similarity.”, (recognizing the “fragmented literal similarity” standard but declining to apply it in cases of digital sampling).