This Book Is a Movie: The 'Faithful Adaptation' as a Benchmark for Analyzing the Substantial Similarity of Works in Different Media

Abstract

How should courts compare works in different media when determining whether one infringes the other? A plaintiff in a copyright infringement action must establish that the defendant’s work is “substantially similar” to the plaintiff’s work. In order to determine whether two works are substantially similar, courts will typically evaluate the elements of the works that constitute the protected expression, which differ depending on the work’s medium (e.g., literary, film, visual artwork, photography, music, etc.). Courts and commentators generally agree that the differences between two works that are dictated by the fact that they are in different media are not relevant to whether the works are substantially similar, but have not explained how to compare the expressive elements of works in different media.

In this article, drawing on the nature of the statutory derivative work right as clarified by the theoretical research and related case law, I argue that courts should translate the original work’s expressive elements into the new medium’s equivalent modes of expression to create a hypothetical “faithful adaptation” of the plaintiff’s work in the new medium. The faithful adaptation would then serve as the benchmark for comparison to the defendant’s work. The author’s right to create transformations (or derivatives) of the original work must serve as the basis for comparison because it is the right that has allegedly been infringed. Thus, applying the “faithful adaptation” standard will transform the plaintiff’s “orange” into an “apple” to allow for an “apples-to-apples” comparison of the two works. Accordingly, adopting the faithful adaptation standard will allow the courts to apply the existing substantial similarity tests to works in different media without being derailed by the irrelevant dissimilarities resulting from the difference in medium.

Keywords: intellectual property, copyright, substantial similarity, medium transformations, derivative works, adaptations

JEL Classification: O34, K39