Author(s): Pamela Samuelson
Year: 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:
Link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2218838