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
The Copyright Handbook Page 50