Reframing similarity analysis in copyright.

• Author: Hickey, Kevin J.
• Position: Abstract through II. Framing Problems in Substantial Similarity A. The Timing Problem, p. 681-707

ABSTRACT

Copyright law lacks a coherent method to determine non-literal infringement. The core inquiry, "substantial similarity, " purports to assess whether two works are so alike that an accused work infringes the original. Substantial similarity is a fundamental limit on the scope of copyright, but it is plagued by confusion and governed by a series of arcane tests that differ in each circuit. Even more troubling, courts lack a consistent method to go about comparing two works and how the comparison between two works is framed. There is no consensus, for example, on whether the original work or the accused work should be used as the baseline when assessing similarity. Courts sometimes adopt the perspective of the original creator, and sometimes of the alleged infringer, in determining whether seemingly copyrightable expression has become an uncopyrightable idea or functional standard. Courts are even confused as to whether dissimilarities or new material added by the defendant have any relevance to the comparison.

This Article seeks to bring analytical clarity to copyright's similarity analysis, with a focus on these often-implicit framing issues. It argues that how courts frame the comparison, more than the legal test applied, is strongly associated with case outcomes. It urges courts to take a consistent approach to framing issues in similarity analysis so as not to improperly bias the comparison in favor of either party. In particular, courts should adopt a flexible, contextual approach to framing. This method considers both the perspective of the original creator and of the alleged infringer, as relevant, in drawing the line between permissible and substantial copying. It rejects the rigid approach that predominates in the case law, and endeavors to consider all relevant information about what was copied, how it was used in context, and why. The result is a similarity analysis that is not only more consistent, but a robust and vital limitation on the scope of copyright.

TABLE OF CONTENTS INTRODUCTION I. SUBSTANTIAL SIMILARITY BASICS A. Elements of Copyright Infringement B. Questionable Standards: The Various "Tests" for Substantial Similarity 1. The Ordinary Observer Test 2. The Extrinsic/Intrinsic Test 3. "Total Concept and Feel" 4. The Abstraction/Filtration/Comparison Test C. Common Ground 1. The Idea-Expression Distinction 2. Merger, Functionality, and Scenes a Faire 3. Thin and Thick Protection D. Do the Tests Matter? II. FRAMING PROBLEMS IN SUBSTANTIAL SIMILARITY A. The Timing Problem B. The Baseline Problem C. The Relevance of Dissimilarity III. A PROPOSED CONTEXTUAL APPROACH A. Applying the Idea-Expression Distinction Dynamically B. A Qualitative, Contextual Approach to Substantiality and Dissimilarities CONCLUSION INTRODUCTION

It is not too much to ask that copyright law have a coherent approach to copyright infringement. But substantial similarity, copyright law's core infringement inquiry, is a mess. Once the law allows that non-exact copies are actionable, courts need some method to determine when two works are so alike that one should be deemed an actionable infringement of the other. To use a classic example, would West Side Story infringe Romeo & Juliet were the latter still under copyright? Or, to take a contemporary dispute, is Robin Thicke's hit "Blurred Lines" too similar to Marvin Gaye's classic "Got to Give It Up"? (1) This question, which copyright calls "substantial similarity," is a famously elusive problem. (2) Though substantial similarity is acknowledged to be a fundamental limit on the scope of copyright, equal in importance to fair use, courts' attempt to craft a predictable, consistent similarity doctrine is widely considered an utter failure. (3)

The most obvious aspect of this failure is the long-standing circuit split over the appropriate legal standard for substantial similarity. At least a half dozen tests for similarity proliferate in the courts, depending on the jurisdiction. (4) To make matters worse, these tests are unduly complex, even by the arcane standards of copyright law. (5) For example, the dominant formulation in the Second Circuit looks to whether an "ordinary observer"--sometimes a "more discerning" observer--would regard the aesthetic appeal of the two works as the same. (6) The Ninth Circuit has bifurcated similarity analysis into "extrinsic" and "intrinsic" steps, with the judge first dissecting and objectively comparing the work's elements, followed by a subjective comparison of similarity by the jury. (7) Still another strain of jurisprudence declines to compare the individual elements of the two works at all, looking instead to similarity in the "total concept and feel" of the works. (8) A final approach is the specialized "abstraction, filtration, comparison" test, usually (but not always) applied to computer software, which first lays out the various levels of abstraction in the work, then filters out unprotected ideas and functional elements, and finally compares the remainder of the two works. (9)

The issue of which of these tests is best has received a fair bit of attention. Much commentary on substantial similarity defends one of the existing tests as superior or proposes to replace the confused doctrine with a new standard. (10) Recent empirical evidence suggests, however, that this long-running debate may be beside the point as a practical matter: in terms of case outcomes, the particular test that a court uses does not appear to make much difference. (11) Instead, it may be that factfinders reach an intuitive conclusion about similarity when comparing the two works, and only then use the various legal formulations to provide an ex post rationale for their decisions. (12)

Judicial confusion about substantial similarity has another, deeper dimension, however--one that has largely escaped notice. This concerns not the ultimate legal threshold for similarity, but instead how the comparison of the original work and the accused work is framed--that is, how courts go about comparing the two artistic works at issue. For example, when looking for similarities, should the factfinder assume the perspective of the original creator or of the alleged infringer? Results from the cognitive sciences have shown that such framing effects can influence whether or not people perceive two things as similar. (13) These framing issues, then, may be more important to case outcomes than the much debated legal tests. This Article seeks to turn attention to the often implicit aspects of how courts approach similarity analysis. Courts have not taken a consistent approach to these issues, to put it mildly.

Consider as an initial example what we will call similarity's timing problem. Much of similarity analysis depends upon distinguishing between the elements of a copyrighted work that are protectable "expression," as opposed to uncopyrightable "ideas." (14) In a work of nonfiction, for example, the expression would tend to include things like particular word choices and phrasing, while the broader thesis and claims would be uncopyrightable ideas. Simply put, a later creator is free to advance the same argument in a new work, so long as she expresses the point in a different way. Ideas, however, are not static concepts. For example, the QWERTY keyboard might have been an original arrangement of letters when it was created, but it is now surely a functional standard idea that cannot be copyrighted. (15) This raises the question: at what point in time should similarity be assessed? Should we apply the idea-expression distinction at the time of an original work's creation, or at the time of alleged copyright infringement? Courts have not settled on an answer. (16)

Similarity's baseline problem is another divide relating to how the infringement analysis is framed. (17) All courts agree that copying must be "substantial" to be actionable, but substantial relative to what? Naively, one might presume to look at the amount of the original work that was appropriated, or to the amount of the allegedly infringing work that was copied. But these measures are not the same if the original work is larger than the accused work, or vice versa. Is copying a page from an encyclopedia less wrongful than copying the same quantity of expression from a novel? Does it matter whether the infringer incorporated that page into a larger work? In practice, courts sometimes reject using the defendants' work as the baseline, for fear that a plagiarist could "excuse the wrong by showing how much of his work he did not pirate." (18) But the alternative of using the plaintiffs work as the measure is no more equitable. (19) In effect, that baseline penalizes the original author for creating more expression, which seems perverse if copyright is intended to incentivize the creation of new works. (20) Regardless of which baseline is best, it might be hoped that courts would at least be consistent, but they have reached no consensus. (21) Even the Supreme Court, addressing the issue in the related context of fair use, switched between various baselines in its opinion without acknowledging the inconsistency. (22)

A third framing aspect of substantial similarity--the dissimilarity problem--relates to the weight, if any, that dissimilarities between the two works should have in the analysis. In other words, if two works share a substantial number of similarities, should the fact that they differ in other ways matter? (23) At least one leading commentator thinks not, stating categorically, "[i]t is entirely immaterial that, in many respects, plaintiffs and defendant's works are dissimilar, if in other respects, similarity as to a substantial element of plaintiffs work can be shown." (24) The case law, however, routinely considers "points of dissimilarity" as relevant and tending to undermine a finding of similarity (25)--though not always. (26) Again, courts show distressing inconsistency on a...