The Function of the Judge and Jury in the Literary Property Lawsuit

Abstract

THERE HAS been comparatively little discussion of the diverse functions of the court and jury in cases involving plagiarism or other actions dealing with the ownership and infringement of rights in intellectual compositions. By far the great majority of cases of this nature have been tried initially by a court sitting without a jury. This may have been due to the fact that under the Copyright Law there are specific equitable remedies provided which have been customarily invoked by plaintiffs. It may also have been due to the desire of counsel for both parties to submit technical copyright to a court rather than a jury. Until recently at least, the majority of all the cases involving this type of property have been brought under the Federal Copyright Law rather than under any claim of common law rights.? Regardless of the reasons, the fact remains that heretofore most decisions have presented situations wherein the court acted not only as the arbiter of the law, but as the trier of the facts; consequently, there is a marked paucity of authority discussing the lines to be drawn between socalled issues of law and fact.2 Recently, however, especially in California, jury trials have been demanded in almost every case. For that reason it is believed a discussion of this almost uncharted field is appropriate. It is first valuable to determine the usual in the ordinary case involving literary property. Almost every action for plagiarism will require the determination of the following issues: (1) What material in plaintiff's work is capable of legal protectibility, i.e., may constitute property? (2) To what extent is such property the product of plaintiff's own independent creative effort?