Reading Together and Apart: Juries, Courts, and Substantial Similarity in Copyright Law
12 Pages Posted: 26 Apr 2017
Date Written: April 25, 2017
This response to Zahr K. Said’s A Transactional Theory of the Reader in Copyright Law, 102 Iowa L. Rev. 605 (2017), joins her in supporting a reader-centered view of copyright infringement but asks whether – within the bounds of reasonableness – any particular reading can be privileged over any other. If a juror sees a suave man calmly battling villains while driving a sports car and says that the character copies James Bond, how do we know if she is right? What if she sees Jason Bourne instead?
Professor Said’s insightful article, relying largely on Louise Rosenblatt’s theory of efferent and aesthetic reading, encourages us to pay more attention to how jurors and judges engage with artistic works, but copyright doctrine’s failure to put more meat on the bones of “substantial similarity” inevitably limits the effectiveness of any guidance jurors might receive. Thus, I suggest, more attention should be paid to how jurors and judges function as scholars and critics – that is, how they converse with one another about their acts of reading and attempt to persuade others that their reading is correct.
We are, as Professor Said thoughtfully reminds us, engaged in constant acts of reading. Her calls for more open conversations, both inside and outside the courtroom, about how we read are well worth heeding. The process by which we read, engage, and interpret, both together and apart, should be the next set of experiences that copyright law should take into account.
Keywords: Copyright, Infringement, Reader-Response, Literary Theory, Louise Rosenblatt
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