Copyright and the Brain

64 Pages Posted: 7 Feb 2021 Last revised: 24 Feb 2021

Date Written: November 17, 2020


This Article explores the intersection of copyright law, aesthetic theory, and neuroscience. The current test for copyright infringement requires a court or jury to assess whether the parties’ works are “substantially similar” from the vantage point of the “ordinary observer.” Embedded within this test are several assumptions about audiences and art. Brain science calls these assumptions into question. The substantial similarity test posits that aesthetic reactions are unmeasurable and uniform. In actuality, they can be quantified and vary depending on audience and artistic medium. Neuroscience has already reconfigured the law in many areas, from tort damages to the death penalty. Now it may offer copyright law a way forward, opening up the black box of aesthetic encounters to reveal what is most salient when making the comparison at the heart of copyright infringement. Three suggested reforms—admitting expert testimony to tailor the substantial similarity test to different kinds of artistic works, using survey evidence to better understand the aesthetic responses of specialized audiences, and reordering the infringement analysis to debias judges and jurors—deploy the insights of neuroaesthetics to improve the law of copyright infringement.

Keywords: copyright, neuroscience, neuroaesthetics, substantial similarity, Bleistein, infringement

Suggested Citation

Bartholomew, Mark, Copyright and the Brain (November 17, 2020). Washington University Law Review, Vol. 98, No. 2, 2020, p.525, University at Buffalo School of Law Legal Studies Research Paper No. 2020-006, Available at SSRN:

Mark Bartholomew (Contact Author)

SUNY Buffalo Law School ( email )

528 O'Brian Hall
Buffalo, NY 14260-1100
United States
716-645-5959 (Phone)

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