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Substantial Similarity In Literary Infringement Cases: A Chart For Turbid Waters, Robert F. Helfing
Substantial Similarity In Literary Infringement Cases: A Chart For Turbid Waters, Robert F. Helfing
Robert F Helfing
INTRODUCTION
"We delve once again," wrote Ninth Circuit Judge Alex O. Kozinski, "into the turbid waters of the 'extrinsic test' for substantial similarity under the Copyright Act.”[1] The court had before it a claim that a popular television series infringed the copyrights in plaintiffs’ screenplays. Precedent regarding substantial similarity is particularly confused in cases involving literary infringement, resulting in virtually automatic rejection: In the past 35 years, courts in the Ninth Circuit has allowed only three such claims to avoid summary dismissal, none since 2002 when Judge Kozinski made his remark about turbid waters. Yet, in the absence of …