Re: substantial similarity (Was: Some Thoughts on Copyright Term)

On Thu, 14 Jan 1999, Timothy Phillips <hrothgar[_at_]telepath.com> wrote:
>
> On 11/17/98 Dan Burk <burkdan[_at_]shu.edu> wrote:
> >
> > On 11/13/98, Moritz Roettinger <moritz.roettinger[_at_]dg23.cec.be> wrote:
> > >
> > > Very interesting examples indeed. But what we must distinguish
> > > between an author just being inspired by another work (like it's
> > > the case win Tolkin) and an author who adapts a pre-existing work
> > > in one or the other way.
> >
> > Mr. Roettinger, like Mr. Henderson, appears to be unfamiliar with the
> > concept of substantial similarity. I think it is clear that in the
> > examples cited -- and many, many others -- where Tolkein, Shakespeare
> > and others lifted entire characters, plot devices, and plot lines from
> > previous works, there would be a strong case for infringement were the
> > previous works not part of the public domain.
>
> In his opinion in the case of Paramout Pictures v. Carol Publishing
> Group, 11 F. Supp 2d 329 (SDNY 1998), Judge Conti equated "fictitious
> facts" with original expression:
>
> ...the passages which Defendants claim to be "descriptions"
> are nothing more than a recapitulation of the fictitious history
> of Star Trek. This fictitious history is a story, created
> and owned by Paramount. The characters, plots and dramatic
> episodes that comprise this story are its original elements.
> The Joy of Trek infringes on the Star Trek Properties as a
> matter of law.
>
> Under this doctrine, almost every non-historical play of Shakespeare's
> would infringe its source, just as Mr. Burk suggests.

I think the use of "public domain" with regard to Shakespeare is misleading, unless you consider everything in, eg, the year 1594 to be "public domain," by virtue of the fact that there was no protection.

The non-history plays of Shakespeare were lifted from plays that were not only well-known, but many were still playing as contemporary work in the theaters at the time. Shakespeare's genius was substantially aided by not having to reinvent the wheel structurally; he could simply incrementally improve what was already there with his superior talents. Under the US Copyright Act of 1976, as amended, it is clear that we would have no modern-day Shakespeare. And indeed, we don't. And, further, we won't, because the law absolutely precludes it.

-- 
Carol Ruth Shepherd
Arborlaw Associates PLLC
Ann Arbor, Michigan USA
+1 734 668 4646 tel   +1 734 663 9361 fax
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