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38:3 Cardozo Arts & Entertainment Law Journal 603-654 (2021)


Copyright infringement doctrine currently overprotects copyright owners against the perceived wrong of copying, failing to adequately countenance copying as an essential part of the authorial creative process. Drawing on existing infringement doctrine in the United States and Canada, this Article will offer an interpretation of “substantial similarity” that opens up (or at least better safeguards) space for creative copying—that is to say, copying that substantially transforms the original copied work and, in doing so, advances the public interest goals of the copyright system. Part I lays the groundwork by briefly presenting a dialogic vision of authorship that complicates conventional assumptions around creativity, originality, and copying. Part II offers an overview of the ways in which existing copyright doctrine can accommodate the realities of dialogic authorship, first through the fair use doctrine, and then turning to the potential role of a more rigorous substantial similarity doctrine to better mediate the copying/creativity divide. Part III explores divergent approaches to substantiality determinations, contrasting a holistic comparison approach that takes into account a work’s “total concept and feel” with a more granular approach that “dissects” the copyright work into protectable and unprotectable elements. Overprotection of the plaintiff’s work is the obvious risk of the holistic approach, failing as it does to adequately circumscribe the boundaries of the copyright owner’s claim to exclusivity. The holistic comparison test also contains within it, however, the possibility of a greater appreciation of the dialogic relationship between the two works. As Part IV argues, reorienting copyright’s holistic “total concept and feel” test could provide the necessary space in copyright infringement doctrine to permit transformative copying of protected works without requiring resort to the fair use defense. It turns out that courts holistically comparing the “total concept and feel” of works may have been asking the right question all along—albeit typically for the wrong reason.


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