The Filtration Problem in Copyright's 'Substantial Similarity' Infringement Test
28 Pages Posted: 5 Jun 2019 Last revised: 30 Nov 2019
Date Written: May 6, 2019
Abstract
Copyright protects original artistic and literary expression. It does not protect ideas, facts, or other elements that may be found in artistic and literary works but which Section 102(b) of the Copyright Act, or the judge-made merger and scènes à faire doctrines, place outside the scope of copyright protection. That principle is easy enough to articulate, but actually implementing it in copyright infringement litigation is considerably more difficult.
This Article focuses not on the theory of idea/expression boundary-setting, but on the mechanics. In particular, how can we make sure that the distinction between protectable expression and unprotectable ideas is faithfully reflected in infringement verdicts? To implement the copyright infringement standard, judges typically engage in a process of “filtration,” by which they separate out ideas and other unprotectable elements of a work. But this procedure does not, by itself, ensure that the idea/expression distinction plays its intended role in the ultimate decision regarding infringement, especially when that decision is made by a jury. If the court’s initial filtration is to have any role in ensuring that infringement is found only on the basis of similarity of protected elements, the jury must be instructed regarding the elements of the works at issue that are protected by copyright and those that are not. But in some cases, instructions may not be enough. To ensure that the idea/expression distinction is reflected faithfully, the jury must be able to replicate and apply the court’s filtration in reaching its verdict. As it stands today, the ways courts have formulated the infringement standard in copyright litigation actively undermines this critical obligation of the jury, encouraging jurors to consider unprotectable elements in their ultimate determinations.
Part III sets out some measures that courts could take to more effectively communicate to juries the boundary between protected and unprotected elements in particular infringement cases. We will caution up front that it is unlikely that our recommendations, either singly or if implemented together, will eliminate a problem that seems endemic to our current copyright law, and a more dramatic change to the infringement standard may be required. The idea/expression distinction is likely to be systematically underenforced so long as juries are encouraged to use intuition rather than discernment in deciding about infringement—even if courts do a better job than they do now of providing juries with the instructions and other resources necessary for them to implement the idea/expression distinction.
Keywords: copyright, infringement, copyright infringement standard, substantial similarity, reforms, ordinary observer, extrinsic, intrinsic
Suggested Citation: Suggested Citation