Substantial Similarity in Literary Infringement Cases: A Chart for Turbid Waters

Abstract

As home to that fictional piece of real estate known as Hollywood, the Ninth Circuit has dealt with the copyright law issue of substantial similarity more than any other jurisdiction, yet it has not developed useful principles for analyzing it. This article examines the history of the Ninth Circuit's two-step test for substantial similarity in literary infringement cases, showing how a quirk in the evolution of the test has created a confusing and ineffectual body of law on the subject. The article argues that the courts have underestimated the complexity of the issue and have given too much credit to their own judgment, unaided by expert input. The absence of a genuine understanding of the issue has led courts to look for substantial similarity where it cannot be found: in the individual elements of literary works. The article presents a proposed rule to re-direct the court's inquiry from the individual elements of the work, where copyright protection cannot be found, to the artistic structure of the work, where it must be found if it exists at all.