COPYRIGHT LAW: TOPIC

FACTS: Consider the rugs that were displayed. Provide the best arguments for the plaintiff and defendant regarding copyright infringement, focusing exclusively on the unlawful appropriation inquiry.

1.) Explain what standards should be applied and how courts should compare the two works.

2.) Address any information that would be helpful in determining the appropriate outcome of the case.

The court should consider two factors. The court inquires about the degree of quantitative and qualitative similarities between the two works. The quantitative amount of copying, or how much copying there was, and the quantity of copying, or how significant the copy was.

The court refers to unlawful appropriation as "substantial similarity." The defendant copied excessively, incorrectly, or improperly in a manner the law wants to deter. The plaintiff's copyright may cover a larger variety of works, not only those that are identical to the plaintiff's works but also those that are significantly similar to them. So the issue is whether the defendant's work is substantially similar or if it comes within the proper scope of the plaintiff's copyright. It is not infringing if it is not substantially similar.

The defendant in Gayle v. HBO clearly copied the plaintiff's work. The issue is whether the defendant copied it unlawfully or wrongfully. The defendant simply claims that, although it copied, it did so in a minor form. The law doesn't care or doesn't remedy the little issue; minor damages are trivial, even if they amount to copy. The key problem here is unlawful appropriation, in which the defendant copied much of the plaintiff's work in a very minor or trivial way. The debate was on de minimis use. For examining appropriation, if the defendant's work is too similar to the plaintiff's work, we need to employ qualitative and quantitative tests. We should consider the nature of resemblance between two works that are not identical but have certain distinct similarities, whether the similarities are at the level of ideas or expression.

What are the arguments about the rugs, copied by the defendant. Give arguments based on two work test.

Reference: Fromer, J.C & Sprigman (2020) Copyright law: cases and materials. (V4.0)pp. 225-229, 238-248, and 251-258