Bruce Boyden

Following on the theme of thoughts that occurred to me as I was teaching Copyright Law this past semester, here’s another. Preparing for the class sessions on substantial similarity, the whole doctrine suddenly struck me as just odd. I don’t mean that it’s vague or inscrutable; anyone who has spent more than 5 minutes with it realizes that. Rather, the doctrine, which I’ve learned and lived with for years, suddenly appeared to me to be like one of those science fiction movies or Twilight Zone episodes where a person suddenly concludes that their spouse or friends are actually imposters, despite all appearances to the contrary.

I’ll do my best to explain what struck me as weird, but I don’t have it quite figured out yet. It started when I was re-reading Nichols v. Universal Pictures Corp., the famous “Abie’s Irish Rose” case. Why is this case even in our casebooks? Why is it so famous? The case does not actually do anything besides make the seemingly obvious point that it is not infringement to write a play in the same general genre as an earlier play. The “levels of abstraction test,” the most famous bit, as is well known, is a nice image, but does not help in actually drawing the line between unprotectable idea and infringing expression.

I’m assuming that Nichols seemed significant at the time, or perhaps a decade or two later. My first guess was that Nichols and perhaps other contemporaneous cases like it were responding to some sort of shift in copyright doctrine. You would need a holding like Nichols if all of a sudden it had become thinkable that very high-level similarities between two plays might give rise to a successful claim of infringement. Except that there are several cases and treatises making essentially the same point as Nichols decades before. Read More »Substantial Similarity Is Weird

Brian Frye has an interesting post up over at Concurring Opinions on Friedman v. Guetta, a recent Central District of California case involving an altered photograph of Run-D.M.C. Somewhat like Fairey v. AP, the issues on summary judgement included whether the original photograph was copyrightable and whether Guetta’s use of it was fair. (You can see the original and altered photographs here.)

There’s lots of interesting issues there, but one that caught my eye is one that has been bugging me more and more every time I teach the fair use section of Copyright Law: the seemingly infinite manipulability of the transformativeness inquiry of the first fair use factor. Much seems to depend on how broadly or narrowly the purpose is defined, but that categorization is almost never accompanied by any discussion of the proper level of generality. Here’s how Judge Pregerson in Friedman defined the purpose of each work:

Here, Defendant has not offered a transformative alternative use of the Photograph image. Both Plaintiff and Defendant are artists, and the image was used by both in works of visual art for public display. Although the statements made by those respective artworks and the mediums by which those respective statements were made differ, the use itself is not so distinct as to render Defendant’s use a transformation of Plaintiff’s copyright.

“Works of visual art for public display” is a pretty broad category; almost every photograph for any purpose will fit that description. Surely that can’t be the proper level of generality. Read More »Levels of Transformativeness