Re: Re: Amicus Brief in Satava v. Lowry

On Thu, 2003-10-02 at 18:55, Vance R. Koven wrote:
> At 11:29 AM 10/2/2003, Edward Barrow wrote:
> >merely using Satava's statue as source material, if the only use
> >of that source material was as inspiration for Lowry's own original
> >work, does not amount to copying.
>
> While this sounds nice in principle, what it leads to is a rule, which is
> contrary to the vast body of precedent, that non-automatic copying is
> always permitted. In Hearn v. Meyer, for instance (664 F. Supp. 832) the
> court held that manual copying was just as much an infringement as
> photocopying. All a person has to do, under the Barrow-Satava theory, is
> deny the copying, and who can segregate out "inspiration" from merely bad
> draftsmanship? Seems to me that if the evidence points to a *desire* to
> copy the expression of an earlier expressive work, then the presumptions
> should be in favor of infringement and the defendant would have to prove
> independent creation. This the Ninth Circuit would not permit under Satava.

The segregation of inspiration from bad draughtsmanship, as you put it, will almost always be difficult. I certainly do not subscribe to the theory that only mechanical reproduction infringes since there is a large body of precedent in many jurisdictions which holds otherwise.The line between inspiration and copying must lie somewhere between purely mechanical reproduction at one extreme and the artistic clean-room at the other.

If the evidence points to a desire - or intention - to copy the expression, then I agree that it points to an infringement. But without the sort of devices such as clean-rooms used to reverse-engineer software without infringing, I do not see how a defendant could therefore prove independent creation.

The idea/expression dichotomy tries to draw a similar distinction as my inspiration/copying line. I haven't seen either of the jellyfish statues in question, so my position is hypothetical. But I do not think it is right to characterise the jellyfish as the idea and statues of jellyfish as a sole expression thereof. To make a jellyfish statue, and no doubt much else besides, are the unprotected ideas used to create the original, and they may be freely taken as inspiration to create another original work. Whether the resultant work also copies the expression of the original is a matter of fact and of degree, which subjective similarity will help determine.

My original point, however, was that the answer to this case must turn around this difficult question, rather than whether the original possesses sufficient creativity to qualify for protection.

-- 
Edward Barrow
Copyright Consultant
http://www.copyweb.co.uk/
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