How Perris v. Hexamer Was Lost in the Shadow of Baker v. Selden
30 Pages Posted: 31 Jan 2018 Last revised: 22 Feb 2018
Date Written: 2018
Perris v. Hexamer stands out as case that is equal parts important and forgotten. It is obviously important – it is one of a preciously small number of Supreme Court decisions on the idea/expression dichotomy, but it is mostly forgotten in favor of the Court’s decision the following year in Baker v. Selden. It is equally obscure – Westlaw counts 2,703 citations of Baker v. Selden, and 81 of Perris v. Hexamer. Yet the subject matter of both decisions is surprisingly similar, and these cases tell us far more when considered in tandem than when either one is considered on its own. This piece will seek to tell the story of Perris v. Hexamer – in terms of both the background of the controversy and the procedural background that led to the lawsuit, as well as discussing the decision itself. Following this, two questions will be addressed – firstly why Perris was largely forgotten as a decision about the idea/expression dichotomy, and secondly why the vote among the Justices was different in Perris than in Baker v. Selden.
Keywords: copyright, fair use, de minimis copying, legal history
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