- Main
Substantial Similarity in Literary Infringement Cases: A Chart for Turbid Waters
Published Web Location
https://doi.org/10.5070/LR8211027175Abstract
As home to that fictional piece of real estate known as Hollywood,
the Ninth Circuit has dealt with the copyright law issue of substantial
similarity more than any other jurisdiction, yet it has not developed
useful principles for analyzing it. This article examines the history of
the Ninth Circuit's two-step test for substantial similarity in literary infringement
cases, showing how a quirk in the evolution of the test has
created a confusing and ineffectual body of law on the subject. The article
argues that the courts have underestimated the complexity of the
issue and have given too much credit to their own judgment, unaided
by expert input. The absence of a genuine understanding of the issue
has led courts to look for substantial similarity where it cannot be
found: in the individual elements of literary works. The article presents
a proposed rule to re-direct the court's inquiry from the individual
elements of the work, where copyright protection cannot be found,
to the artistic structure of the work, where it must be found if it exists at
all.
Main Content
Enter the password to open this PDF file:
-
-
-
-
-
-
-
-
-
-
-
-
-
-