Hiroshige v. Van Gogh: Resolving the Dilemma of Copyright Scope in Remedying Infringement

Abstract:     
This article asks: What should be the scope of copyright protection? To illustrate this question, Part I considers a hypothetical suit based on art history. In this suit, Hiroshige sues Van Gogh for copying a pair of his wood-block prints in studies in oil. (Exhibits in the published version present one such print and one such study in colored reproductions.) Part II then explains how determining the scope of copyright in such cases leads into a basic dilemma. On the one hand, if this scope is too narrow, copyright law fails to prevent free-riding that undercuts incentives for creating and disseminating works to enhance culture. On the other, if this scope is too broad, copyright law risks stifling the feed-back of works indispensable for creating new culture. In our hypothetical, for example, an injunction against Van Gogh or his heir would hold back seminal works in modern art. No attempt is made here to evade this dilemma by invoking copyright exceptions, such as fair use, that vary from law to law. Rather, Part III of the article undertakes the comparative analysis of doctrines that limit infringement analysis in copyright laws generally. These include, most notably, the idea-expression distinction, merger and related doctrines, and those guiding the sliding-scale analysis of infringement. Such doctrines are brought together in a new framework of analysis, which delineates a full spectrum of processes for appropriating works that include rote copying, knowledgeable reworking, and innovative recasting. For example, a close viewing of our case, aided by expert analysis, shows how Hiroshige's visual schemes were innovatively recast by Van Gogh. Part IV argues that remedies should be fashioned with an eye to where a case falls along just such a spectrum. Following the proposed framework of analysis, rote copying would trigger a full panoply of remedies, knowledgeable reworking would call for only discretionary injunctive remedies and apportioned monetary awards, and innovative recasting would preclude most injunctive orders but not apportioned awards. For example, Van Gogh would not be enjoined, but might owe Hiroshige some share of profits. These guidelines are further illustrated in some detail in diverse contemporary cases. The conclusion stresses that the framework of analysis here is experimental. But the lesson remains: remedies should be adjusted to the extent of infringement.

JEL Classifications: K10, K11, K41, L82

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