Copyrights and Creative Copying
People invest their time, energy and resources to produce a broad variety of copyrightable works of original authorship for an expansive array of reasons, many of which appear economically irrational. This makes it impossible to offer defensible generalizations about the effect, if any, that copyright laws have upon human creators, their artistic impulses, and the decision making underlying the formation of creative works. Nevertheless, it seems highly probable that authors can be negatively affected by the specter of copyright infringement suits in a manner that burdens and chills the creative process. Exact, whole-text copying can be avoided by authors aspiring to copyright compliance, but inspirational, stylistic copying may be more difficult, and problematic, to elude. Many authors strive for unqualified uniqueness in their work for reasons generally unrelated to copyright, but may still unintentionally incorporate into their creative output elements of other works to which they have been exposed. Some authors consciously reference other works, but if they undertake affirmative steps to acknowledge their influences and credit existing works for inspiration, they may actually increase the likelihood of being sued for copyright infringement. In both cases, copyright-related strategizing may unproductively deplete time, energy, and financial resources that might otherwise be used in creative endeavors.
Creating new works would appear less perilous, and be more effectively promoted, if the act of copying was less freighted with fear of copyright-infringement accusations. This essay considers just one fragment of this vast and complicated picture: the scope of the substantial similarity doctrine. Though judges sometimes do a good job of defining substantial similarity with appropriate narrowness, in other instances courts have found substantial similarity far too readily, fomenting unwarranted fear, uncertainty, and legal fees. The solution is simply more consistent judicial curtailment of the reach of substantial similarity grounded copyright infringement liability, whether in the context of copyright holders' reproduction rights, or derivative works rights.
University of Ottawa Law & Technology Journal
Ann Bartow, Copyrights and Creative Copying, 1 University of Ottawa Law & Technology Journal 75 (2004).