Hiroshige v. Van Gogh: Resolving the Dilemma of Copyright Scope in Remedying Infringement

Abstract

This article asks: What should be the scope of copyright protection? To illustrate this question, Part I raises a hypothetical suit based on art history: Hiroshige sues Van Gogh for copying his wood-block prints in studies in oil. Exhibits present one such print and one such study in colored reproductions. Part II then explains how determining the scope of copyright in such cases leads into a basic dilemma. On the one hand, if this scope is too narrow, copyright law fails to prevent free-riding that undercuts incentives for creating and disseminating works to enhance culture. On the other, if this scope is too broad, copyright law risks stifling the feed-back of works indispensable for creating new culture. In our hypothetical, for example, an injunction against Van Gogh or his heir would hold back seminal works in modern art. No attempt is made here to evade this dilemma by invoking copyright exceptions, such as fair use, that vary from law to law. Rather, Part III compares methods and doctrines that elaborate and limit infringement analysis in copyright law generally. Many laws apply the idea-expression distinction, merger and related doctrines, or the sliding-scale analysis of infringement. Such doctrines are brought together in new analysis delineating a full spectrum of processes for appropriating works. These include rote copying, knowledgeable reworking, and innovative recasting, the latter seen in our hypothetical case. Part IV argues that remedies should be fashioned according to where a case falls along just such a spectrum. Following the proposed analysis, rote copying would trigger a full panoply of remedies, starting with injunctive relief. But knowledgeable reworking would call for only discretionary injunctions and apportioned monetary awards. Innovative recasting would preclude most injunctive orders but not apportioned awards. For example, Van Gogh would not be enjoined, but might owe Hiroshige some share of profits. These guidelines are further illustrated in some detail in diverse contemporary cases. The conclusion stresses that the analysis unpacked here is experimental. Its lesson: remedies should be adjusted to the extent of infringement.