By Dr. Gary L. Deel, Ph.D., J.D.
Associate Professor, Dr. Wallace E. Boston School of Business
Intellectual property laws are designed to protect the unique creations of individuals from misappropriation or exploitation by others without permission. There are generally four different types of intellectual property protected by the law: copyrights, trademarks, patents and trade secrets.
Copyright is the legal protection for different kinds of creative and artistic expressions, such as literary, dramatic, and musical works. Books, articles, poems, movies, plays, pictures, paintings, sculptures, songs and other types of art are all covered by copyright protections.
Unlike other types of intellectual property, the creators of these kinds of artistic expression need not take any affirmative action to secure their copyrights. The rights of ownership are automatically conferred at the time of creation.
But the lines of fair versus exploitative conduct in intellectual property can sometimes be blurry. So here’s a question: How similar do two different works have to be in order for a court of law to appropriately reach a finding of copyright infringement?
The Boundaries of Copyright Protection and the ‘Substantial Similarity’ Test
In law school, students training to become attorneys learn that there are two words which can be invoked to correctly answer almost any legal question: “It depends.” This answer also applies to copyrights; the boundaries of copyright protection can be very difficult to establish because so much depends on the type of work, the alleged usurpation, and the likenesses between the original and the reproduction.
Courts have attempted to establish some basic “litmus tests” for copyright infringement, and one of the most common assessments is the “substantial similarity” doctrine. As the name implies, courts apply a similarity test to scrutinize how alike or different two works might be.
The substantial similarity test has two components. The first component involves looking at the extent of literal appropriation. In other words, if there is evidence of any unambiguous facsimile of a copyrighted work (i.e., copying word for word, pixel for pixel, note for note, or detail for detail) between the original work and the reproduction, how much of the original work was copied in relation to the whole and is that proportion “substantial”?
For example, suppose that an author accuses someone else of copyright infringement, based on the fact that 100 words from a 10,000-word story appear to have been copied verbatim (and without attribution) into a new work. Here, even though there may have in fact been appropriation, the volume of copied content scarcely constitutes 1% of the total work, so a court might have trouble finding “substantial” similarity here.
On the other hand, suppose that instead of being taken from a 10,000-word story, the 100 words are appropriated from a 200-word poem. Now our situation is quite different, because even though the substance of the appropriated content is the same, it now constitutes 50% of the original work, and a court could easily find that to be “substantial” during analysis.
But an accused person doesn’t have to literally appropriate someone else’s creation to be held liable for copyright infringement. The substance of a work also matters, and therein lies the second component of the substantial similarity test.
Courts have long held that it is possible for the creative composition of an artistic work to be similar enough to an original, in concept or substance, such that a copyright violation could be found, even in the absence of any exact instance of a perfect facsimile. However, this is where copyright analysis can get muddy, because how similar must two works be to satisfy such an interpretation?
The Copyright Case of Nichols v. Universal Pictures
The case of Nichols v. Universal Pictures is one of the earliest cases examining copyright disputes in the screenplay and performing arts arena. Anne Nichols was a writer who penned a play in the 1920s entitled “Abie’s Irish Rose,” a dramatic comedy about two families, one Irish and one Jewish.
The Irish daughter and the Jewish son fall in love and marry, and a feud erupts between the families, borne out of religious zealotry and a fervor for puritanism. In the end, the two families are reunited by a mutual love for their newly-born grandchildren.
A few years later, Universal Pictures produced a silent film called “The Cohens and Kellys” about – you guessed it – an Irish family and a Jewish family. This time, the Irish family has a son and the Jewish family has a daughter; they marry and a feud between the families ensues. In the end, there is a burying of hatchets and a reconciliation.
The Nichols case did not involve any allegations of literal facsimile; there were no accusations that anyone copied the exact words of Anne Nichols. But still, it’s all too easy to think, based on the most general descriptions of these two works, that Universal Pictures’ movie is a clear and unambiguous case of copyright infringement insofar as the general substance of both stories is concerned.
Anne Nichols certainly thought so and she sued Universal Pictures in 1929. She lost in federal district court, appealed to the Second Circuit Court of Appeals and lost again. But why?
In the opinion from the Second Circuit Court, the Court clarified its analysis. First, the Court unambiguously affirmed that copyright infringement protections are intended to extend beyond the scope of literal facsimile, stating, “It is of course essential to any protection of literary property, whether at common-law or under the statute, that the right cannot be limited literally to the text, else a plagiarist would escape by immaterial variations.”
The Court also said that such extensions could, in theory, mean that a violation of creative rights could be found where the stories of two screenplays are so similar as to be substantial. The Court noted, “We do not doubt that two plays may correspond in plot closely enough for infringement.”
However, the Court stated that mere ideas in literary plots cannot be monopolized by copyright protections, and superficial similarities in general context are not enough to support the finding of a violation. In its opinion, the Court added, “Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his “ideas,” to which, apart from their expression, his property is never extended.”
At first glance, the basic premise of Nichols’ play and Universal Pictures’ movie seems quite similar. However, the basis for the decision to deny Nichols’s claim in the case was based on a more in-depth analysis of details regarding the two stories.
For example, the Court looked at the finer points of the plots and found significant differences regarding key points such as:
- The elements of religious zealotry and puritanism in the different families
- The role of grandchildren in each of the stories
- The motivations behind different events
- The composition of the characters in each tale
Based on this analysis, the Court essentially found that these two works – while admittedly similar in some respects – were more different than they were alike. And their similarities, whether coincidental or the product of conscious inspiration and appropriation, were tangential to the bigger picture.
This finding is important because the Court essentially acknowledged the possibility that the Universal Pictures film producers might have knowingly and deliberately borrowed elements of Nichols’ story for their film. However, the Court opined that, if this “borrowing” occurred at all, it was a legal appropriation because the components of the stories that initially seemed similar did not live up to the level of specificity and uniqueness that warrant copyright protections.
It’s Crucial to Understand What Can and Cannot Be Protected by Copyright Law
Understanding the distinction between what can be protected by copyright and what cannot is crucial. Without these limits, creators might be tempted to claim ownership rights to even the broadest general concepts in a story.
For example, if you write a story about a boy who falls in love with a girl, and then I write another story about a different boy who falls in love with a different girl, is that enough for an infringement claim? Of course not – such basic plot devices are so ubiquitous and commonplace that to confer unique ownership of them to anyone would be absurd.
The Court’s opinion acknowledged this way of thinking in the Nichols case regarding the setting of the feuding families: “A comedy based upon conflicts between Irish and Jews, into which the marriage of their children enters, is no more susceptible of copyright than the outline of Romeo and Juliet.”
Interestingly, the Court noted that “ideas” are generally not protected by copyright. This definition draws a distinction between copyrights and other types of intellectual property protections such as patents, where ideas are the precise targets of protection.
But patents require a rigorous registration and originality verification process, and copyrights do not. As a result, the standards for each domain are clearly different.
Copyright protections are an extremely nebulous area of the law, because so much of any analysis is context-specific. Each creation and each situation are very different, so that trying to define any generally applicable rules for the larger scope of copyright cases is almost impossible.
This consideration is especially true when claims of infringement involve the general substance of a work rather than any specific instances of a literal copy. The Court in Nichols agreed, stating “as literal appropriation ceases to be the test, the whole matter is necessarily at large, so that…the decisions cannot help much in a new case.”
Nonetheless, it is important for courts to confront copyright issues to promote the optimization of fairness in our intellectual property protections. The Court in Nichols acknowledged this need, writing, “while we are as aware as anyone that the line, wherever it is drawn, will seem arbitrary, that is no excuse for not drawing it; it is a question such as courts must answer in nearly all cases.”
It has been nearly 100 years since the Nichols decision. However, the basis and reasoning for the opinion still stands today, and it continues to guide decisions around copyright disputes in the present day. Through these types of intelligent analyses and case precedents, our courts seek to establish a sounder foundation for justice in copyright and general intellectual property cases.