The Copyright Handbook

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The Copyright Handbook Page 50

by Stephen Fishman


  rational explanation. Courts call this level

  heritage, or have cast their works in

  of similarity “substantial similarity.”

  the same tradition

  You don’t need to engage in a hyper-

  • the imperatives of orthodoxy and

  critical textual analysis to determine

  convention

  whether substantial similarity exists. Simply

  • the impact of influence and imitation

  compare both works from all angles and ask

  • the process of evolution

  yourself whether the average reader would

  • the dictates of vogue or fashion

  conclude that the author of the later-created

  • the fact that both authors have

  work copied from the first.

  stolen from the same predecessor

  Of course you should look for similarities

  • the fact that both have made

  in wording, but other similarities may also

  legitimate use of the same news

  help establish copying. In the case of a work

  item, historical event, or other source

  of fancy, such as a novel or play, compare

  material, and

  such aspects of the works as their themes,

  • the intervention of coincidence.

  284 | THE COPYRIGHT HANDBOOK

  plots, characters, settings, moods, paces,

  Making Lists of Similarities

  and writing styles. For a factual work, such

  It may be helpful to draw up a list of

  as a history or biography, similarities in the

  similarities you discover between your

  facts, structure, and organization of the

  work and another work you think might

  works may help indicate copying.

  be infringing. You can then show the list

  to a copyright lawyer, who might even

  TIP

  have it admitted into evidence if a lawsuit

  results. Here’s a small portion of such a list

  Publishers of certain types of

  prepared by the producers of the film Star

  works, particularly directories and other fact

  Wars, who successfully claimed that their

  compilations, sometimes deliberately insert

  work had been copied by the creators of

  minor errors in their work to help prove

  the television movie Battlestar Galactica:

  copying. If the alleged infringer’s work contains

  • The central conflict of each story is a

  the same errors, copying must have occurred.

  war between the galaxy’s democratic

  and totalitarian forces.

  • In Star Wars, the young hero’s father

  What Judges and Juries Actually

  had been a leader of the democratic

  Do in Infringement Cases

  forces, and the present leader of the

  democratic forces is a father figure

  Judges and juries normal y do not engage

  to the young hero. In Battlestar, the

  in a hypercritical line-by-line analysis of

  young hero’s father is a leader of the

  the works in question to determine if a

  democratic forces.

  defendant’s paraphrasing or copying of a

  • An entire planet, central to the

  prior work’s total concept and feel con-

  existence of the democratic forces, is

  stitutes infringement. Rather, they simply

  destroyed in both stories.

  ask themselves whether the average

  • The heroine in both stories is

  intended reader of the works would regard

  imprisoned by the totalitarian forces.

  them as substantial y similar. This is not a

  • A friendly robot, who aids the

  scientific process. It’s based mostly on a

  democratic forces, is severely injured

  judge or jury’s gut impressions and sense

  ( Star Wars) or destroyed ( Battlestar)

  of fairness. If the judge or jury thinks that

  by the totalitarian forces.

  the alleged infringer has done something

  • There is a scene in a cantina ( Star

  wrong, they will usual y find him or her

  Wars) or casino ( Battlestar), in which

  guilty of copyright infringement.

  musical entertainment is offered by

  bizarre, nonhuman creatures.

  CHAPTER 11 | COPYRIGHT INFRINGEMENT | 285

  Improper Use of Protected Expression

  occurred when virtual y every word in the

  al eged infringer’s work is the same as yours.

  The fact that the alleged infringer in all

  Indeed, when there is this much copying,

  likelihood copied from your work will

  many courts dispense with the need to show

  get you through the courthouse door but

  access; instead they presume it.

  is not enough to establish infringement.

  The final and most important element of

  EXAMPLE 1: Sal y writes a short story and

  infringement is that the alleged infringer

  gives The New Zorker magazine permission

  has copied your work’s protected expression.

  to publish it once. Three months later, she

  As discussed in detail in Chapter 5,

  discovers that The Plagiarist’s Review has

  “What Copyright Protects,” a work’s

  republished her story without asking her

  protected expression consists of the author’s

  permission (she had retained all her other

  independently created word sequences and

  copyright rights in the story). The Review has

  the selection and arrangement of material.

  clearly infringed upon Sal y’s copyright in

  Everything else, including the ideas and

  her story.

  facts the work expresses, is in the public

  EXAMPLE 2: Lou publishes a monthly

  domain, free for all to use.

  newsletter on trends in the publishing

  There are four levels or degrees of copying

  world. He discovers that one of his

  of protected expression that can constitute

  subscribers has made electronic copies

  copyright infringement:

  of the newsletter available to the general

  • verbatim copying of all of a work’s

  public on its website. This is also verbatim

  protected expression

  copying and infringes Lou’s copyright.

  • verbatim copying of part of a work’s

  expression

  Partial verbatim copying

  • paraphrasing a work’s protected

  expression, and

  Far more common than verbatim copying

  • copying a work’s total concept and

  of an entire work, especially where such

  feel or fundamental essence.

  factual works as biographies, histories, and

  how-to books are involved, is verbatim (or

  Verbatim copying of an entire work

  near verbatim) copying of only a portion

  of a work’s protected expression, whether

  The most obvious type of copyright infringe- a few lines, paragraphs, pages, or chapters.

  ment occurs when an entire book, story,

  This kind of copying constitutes copyright

  or article is copied verbatim (or nearly so)

  infringement only if a substantial amount of

  without the copyright owner’s permiss
ion.

  protected expression is taken.

  No one can doubt that infringe ment has

  286 | THE COPYRIGHT HANDBOOK

  How much is substantial? There is no

  In some cases, it can be can be very

  definite answer. Verbatim copying of

  difficult to tell whether a work’s protected

  300 or 400 words would usual y be con-

  expression has been paraphrased or an

  sidered substantial enough to constitute

  alleged infringer has merely taken the

  infringement. However, it is possible for less

  ideas and facts in the work and put them

  copying to be infringement if the material

  in his or her own words, which because

  taken is of great value or highly original. For of the merger doctrine (Chapter 5, “What example, infringement was found where the Copyright Protects”), coincidence, and

  defendant copied 12 sentences from Martin others factors, happen to be similar to the

  Luther King’s “I Have a Dream” speech

  prior work’s. It can be difficult to predict in

  in an advertising pamphlet for funeral

  such cases whether a judge or jury would

  accessories. ( Martin Luther King, Jr., Center conclude that infringement has occurred.

  for Social Change, Inc. v. American Heritage

  (See “Paraphrasing Self-Test,” below.)

  Products, 508 F.Supp. 854 (N.D. Ga. 1981).) Copying a work’s total concept and feel Paraphrasing

  The final type of copying that can

  In the infringement context, paraphrasing

  constitute infringement, and the

  means making alterations in an author’s

  most difficult to detect and prove, is

  words instead of copying them verbatim.

  unauthorized copying of a work’s total

  Whether done consciously, to make it

  concept and feel. This type of copying is

  appear copying has not occurred, or

  often claimed to be present in infringement

  unconsciously, paraphrasing constitutes

  cases involving such works of fancy as

  copyright infringe ment if there is a

  novels, plays, and poems. This is one term

  substantial amount of it. If this were

  courts use to describe a work’s fundamental

  not so, an infringer could get away with

  essence or overall pattern. It consists of the

  infringement simply by making minor

  totality of all the elements an author selects

  changes in an original work’s wording.

  and combines to form a single work of

  However, this type of close paraphrasing authorship. Total concept and feel includes

  must be contrasted with changing an

  a novelist’s selection and combination of

  author’s protected expression to such

  themes, setting, stock characters, scenes,

  an extent that there are no recognizable

  situations, literary devices, writing style,

  similarities in the prior and subsequent

  and plot. This type of infringement protects

  works’ expression. In the words of one

  an author’s selection and combination of

  court, “copying so disguised as to be

  individual elements that are not separately

  unrecognizable is not copying.” ( See v.

  protected by copyright. (See Chapter 5,

  Durang, 711 F.2d 141 (9th Cir. 1983).)

  “What Copyright Protects.”)

  CHAPTER 11 | COPYRIGHT INFRINGEMENT | 287

  Paraphrasing Self-Test

  Compare the fol owing passages taken from actual published works and decide for yourself

  whether the author of the second passage infringed upon the protected expression in the first passage. We also tell you what the courts decided.

  Passage in first created work

  Passage in subsequent work How the courts ruled

  Surprisingly, the newborn is a

  From his first breath, the

  Infringement. The court

  remarkably capable organism

  child is remarkably well-

  was probably swayed by the

  from the moment he begins

  equipped for life. He can

  fact that there were over

  to breathe. He can see, hear,

  see, hear, smel , touch and

  400 examples of this type of

  smel , and he is sensitive

  feel pain. All his senses,

  paraphrasing from the prior

  to pain, touch, and change

  except taste, are operating

  work. ( Meredith Corp. v. Harper

  in position. The only sense

  immediately, and even taste

  & Row, Publishers, 378 F.Supp.

  modality which may not be

  develops rapidly.

  686 (S.D. N.Y. 1974).)

  functioning immediately at

  birth is taste, but even this

  sense develops rather quickly.

  And second, he says that likely

  The second development

  Infringement. This was just one

  to aid comparisons this year

  likely to aid comparisons

  of dozens of passages in financial

  was the surprisingly limited

  this year was the surprisingly reports that were closely para-

  extent to which Fiber Division’s limited extent to which the

  phrased in a financial newspaper.

  losses shrank last year.

  Fiber Division’s losses shrank ( Wainwright Sec. v. Wall Street

  last year.

  Transcript Corp. , 558 F.2d 91 (2d

  Cir. 1977).)

  Ohm’s Law is a very important Ohm early in the 19th

  Infringement. The court

  law which you must learn.

  century discovered that

  was probably swayed by the

  R = E/I where R = resistance

  the ratio of the pressure

  fact that there were over

  in ohms

  to the current in a given

  400 examples of this type of

  circuit is constant. This is the paraphrasing from the prior

  E = pressure in volts

  fundamental law of the flow

  work. ( Meredith Corp. v. Harper

  I = current in ampheres.

  of electrical currents.

  & Row, Publishers, 378 F.Supp.

  R = E/I where R = resistance

  686 (S.D. N.Y. 1974).)

  in ohms

  E = pressure in volts

  I = current in ampheres.

  288 | THE COPYRIGHT HANDBOOK

  Paraphrasing Self-Test (continued)

  Passage in first created work

  Passage in subsequent work How the courts ruled

  [A]s the Lord commanded he

  In accordance with the

  No infringement. Okay, we

  lifted up the rod and smote the directive previously received cheated. This is a made-up waters of the river and all the

  from higher authority, he

  example that no court has or ever

  waters that were in the river

  caused the implement to

  could rule on. The first passage

  were turned to blood. And the

  come into contact with

  is from Exodus in the King James

  fish that were in the river died;

  the aquifer, whereupon

  Version of the Old Testament,

  and the river stank; and the

  a pol uting effect was

  which is in the public domain.

  Egyptia
ns could not drink the

  perceived. The consequent

  However, even if the passage was

  waters of the river; and there

  toxification reduced the

  protected by copyright, it’s not

  was blood throughout all the

  conditions necessary for

  likely that anyone would conclude

  land of Egypt.

  the sustenance of aquatic

  that the second passage infringed

  vertebrates below the

  upon it. Although we would

  level of continued viability.

  never advise anyone to write this

  Olfactory discomfort

  badly, the second passage (taken

  standards were substantial y

  from Wydick, “Plain English for

  exceeded, and potability

  Lawyers,” 66 Calif. Law Review 737

  declined. Social, economic,

  (1978)) is a good example of an

  and political disorientation

  author’s taking the facts in a prior

  were experienced to an

  work and putting them into his or

  unprecedented degree.

  her own words.

  Ellen, Julia, and Rachel will

  Early in 1960, Wright wrote

  No infringement. The author

  be here on Tuesday; they’ll

  to Margrit de Sabloniere that of an unauthorized biography

  stay for two days. Don’t know

  Ellen, Julia, and Rachel would of Richard Wright paraphrased

  what will happen when they

  be arriving for a two or three these lines from an unpublished

  get here. I’m hoping for peace

  day visit. Wright said that he letter by Wright. The court

  and quiet.

  did not know what would

  held there was no infringement

  happen when they arrived

  because the paraphrasing

  but that he was hoping for

  constituted “straightforward

  peace and quiet.

  factual reportage” of the

  “most basic and banal factual

  matter,” not Wright’s protected

  expression. ( Wright v. Warner

  Books, Inc., 748 F.Supp. 105 (S.D.

  N.Y. 1990).)

  CHAPTER 11 | COPYRIGHT INFRINGEMENT | 289

  Paraphrasing Self-Test (continued)

  Passage in first created work

  Passage in subsequent work How the courts ruled

  He looks to me like a guy

  [Salinger] had fingered

  Infringement. The author of

  who makes his wife keep a

  [Wilkie] as the sort of fel ow

  an unauthorized biography of

  scrapbook for him.

  who makes his wife keep an

  J.D. Salinger paraphrased these

  album of press clippings.

  lines from an unpublished

  letter by Salinger. The court

  characterized the biographer’s

 

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