Re: Merger Doctrine Question -- Idea/Expression

On Wed, 11 Nov 1998, J. Jay Guiliano <jguilian[_at_]hancocklaw.com> wrote:
>
> There are a number of peculiar aspects of this case, but one could argue
> that the 2nd Circuit decision stands for the proposition that the merger
> doctrine can be applied to negate copyrightability, not merely as a
> defense to infringement. Specifically, 102(b) of the Copyright Act was
> used as support of this proposition (see dissent in Kregos decision).

My recollection of the Kregos dissent was that it was confused about exactly what copyright protected. If I'm thinking of the right case, the dissent noted that the majority's holding was that the plaintiff's and defendant's works could be nearly identical and yet not be substantially similar, which he felt to be obvious nonsense.

That misapprehends substantial similarity. Substantial similarity is not just "really, really similar" -- it's similarity of substance, specifically, similarity of copyrightable substance. It's quite possible for two works to be identical or nearly identical due to copying of uncopyrightable material, and yet not be substantially similar, because nothing of copyrightable substance was copied.

This doesn't mean that the similarity of noncopyrightable material isn't relevant. This similarity, which Nimmer calls "probative similarity," is very useful for determining whether factual copying occurred, as opposed to independent creation.

I think the single worst point of confusion in infringement determination is confusion over these two very different issues of similarity, and that fact that judges often sloppily use "substantial similarity" or "striking similarity" for either, which leads to statements in cases where one context is applicable are applied in another very different context.

--
Terry Carroll       | "Report of the Committee On Governmental Affairs,
Santa Clara, CA     | United States Senate, To Accompany S. 1364, An Act To
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Modell delendus est |  - Title of U.S. Senate Report 105-187, May 11, 1998