Download This PaperA Fresh Look at Tests for Nonliteral Copyright Infringement
23 Pages Posted: 16 Feb 2013
Date Written: February 1, 2013
Abstract
A central puzzle for U.S. copyright law in the 20th and 21st centuries has been how to test for infringement of the exclusive right this law gives authors to control the reproduction of their works in copies. No subtlety of analysis is required when a work is copied word-for-word, line-for-line, or note-for-note or when second comers have made "merely colorable and fraudulent variations." But as Professor Kaplan once observed, "[w]e are in a viscid quandary once we admit that "expression" can consist of anything not close aboard the particular collocation in its sequential order."
This Article offers several strategies for refining infringement analysis so that it becomes less viscid in cases alleging what the Nimmer treatise describes as "nonliteral" similarities between two works. Nonliteral infringement may arise, for instance, when a second comer appropriates detailed plot sequences from another author's drama but uses different dialogue.
Part I discusses the five most frequently utilized tests for infringement of the reproduction right in nonliteral similarity cases. It explains how these tests are similar and different and why each test is flawed in one or more respects. Apart from these flaws, it is problematic that there are so many different tests and so little guidance about which test to use when.
Part II recommends, among other things, that courts tailor infringement tests based on characteristics of the works at issue. The more artistic or fanciful a work is, for example, the more appropriate it is to focus infringement analysis primarily on similarities in the aesthetic appeal of the two works rather than on a dissective analysis of similarities and differences. The more factual or functional a works is, by contrast, the "thinner" is said to be its scope of protection, which suggests that infringement analysis should be more dissective in relation to similarities and differences of these works and less emphasis should be placed on impressions. Courts should also give more guidance about what constitutes protectable expression in copyright works and what aspects, besides abstract ideas, are unprotectable by copyright.
Keywords: copyright, infringement, infringement analysis
Suggested Citation: Suggested Citation
Pamela Samuelson (Contact Author)
University of California, Berkeley - School of Law ( email )
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