Following on the theme of thoughts that occurred to me as I was teaching Copyright Law this past semester, here’s another. Preparing for the class sessions on substantial similarity, the whole doctrine suddenly struck me as just odd. I don’t mean that it’s vague or inscrutable; anyone who has spent more than 5 minutes with it realizes that. Rather, the doctrine, which I’ve learned and lived with for years, suddenly appeared to me to be like one of those science fiction movies or Twilight Zone episodes where a person suddenly concludes that their spouse or friends are actually imposters, despite all appearances to the contrary.
I’ll do my best to explain what struck me as weird, but I don’t have it quite figured out yet. It started when I was re-reading Nichols v. Universal Pictures Corp., the famous “Abie’s Irish Rose” case. Why is this case even in our casebooks? Why is it so famous? The case does not actually do anything besides make the seemingly obvious point that it is not infringement to write a play in the same general genre as an earlier play. The “levels of abstraction test,” the most famous bit, as is well known, is a nice image, but does not help in actually drawing the line between unprotectable idea and infringing expression.
I’m assuming that Nichols seemed significant at the time, or perhaps a decade or two later. My first guess was that Nichols and perhaps other contemporaneous cases like it were responding to some sort of shift in copyright doctrine. You would need a holding like Nichols if all of a sudden it had become thinkable that very high-level similarities between two plays might give rise to a successful claim of infringement. Except that there are several cases and treatises making essentially the same point as Nichols decades before. For example, consider Eichel v. Marcin, 241 F. 404 (S.D.N.Y. 1913), decided by Judge Manton, later elevated to the Second Circuit. Eichel concerned two plays, “Wedding Presents” and “Cheating Cheaters.” Judge Manton, in language similar to the Nichols opinion, held the defendant’s play non-infringing:
If an author, by originating a new arrangement and form of expression of certain ideas or conceptions, could withdraw these ideas or conceptions from the stock of materials to be used by other authors, each copyright would narrow the field of thought open for development and exploitation, and science, poetry, narrative, and dramatic fiction and other branches of literature would be hindered by copyright, instead of being promoted. A poem consists of words, expressing conceptions of words or lines of thoughts; but copyright in the poem gives no monopoly in the separate words, or in the ideas, conception, or facts expressed or described by the words. A copyright extends only to the arrangement of the words. A copyright does not give a monopoly in any incident in a play. Other authors have a right to exploit the facts, experiences, field of thought, and general ideas, provided they do not substantially copy a concrete form, in which the circumstances and ideas have been developed, arranged, and put into shape.
The plaintiffs in Eichel, just like the plaintiff in Nichols, prepared an elaborate chart of similar elements in the two plays. No dice, said Judge Manton, pointing out that each of the alleged similarities had been the subject of numerous other plays as well (Manton then listed examples; apparently he was quite the theater buff). He concluded:
The resemblances between the two dramatic compositions, I am of the opinion, are minor instances and are not important. The copyright cannot protect the fundamental plot, which is common property, as was pointed out above, long before the story was written. It will, of course, protect the author, who adds elements of literary value to the old plot; but it will not prohibit the presentation by some one else of the same old plot without the particular embellishments.
Eichel cites even earlier British cases to the same effect, Chatterton v. Cave,  3 App. Cas. (H.L.) 483, and Sayre v. Moore, 102 Eng. Rep. 138 (1785). So the issue seems not to have been of recent vintage.
So if Nichols was not some breakthrough resolution of a novel difficulty, why is it so famous now? My other guess is that the significance of Nichols relates more to what came after than what came before, and here Nichols ties in with the rest of the substantial similarity materials. Substantial similarity, at least the way it plays out now, gives some initial weeding tasks to the judge to determine if the defendant actually copied from the plaintiff or not — but then, if there are copied elements, kicks the whole issue to the jury, with very little in the way of instruction — to weigh the “total concept and feel,” which is only a delusional improvement on “substantially similar” itself. This is the other bizarre aspect of substantial similarity, to my mind; what is the doctrine supposed to be doing, exactly? Was it ever supposed to be a higher threshold beyond actual copying, and what is the threshold?
I think it may be significant that Nichols was decided in 1930, before the merger of law and equity. The Nichols district court case, 34 F.2d 145 (S.D.N.Y. 1929), was a case brought in equity, as most were; the district court judge begins, “This is a suit for the alleged infringement of a copyright, and the usual injunctive relief with an accounting is prayed for.” The Nichols appeal, therefore, is staking out the outer edge of a range of cases in which judges might have to determine whether the similarities between two works are “substantial” or not. But after the merger of law and equity, this issue goes to the jury, and in a particularly standardless way (why there’s no guidance given to the jury is something I don’t understand). The “levels of abstraction” test therefore becomes not the end of a scale that judges will be applying in total, but rather a judge’s last crack and resolving a case on actual copying of protected expression before the case goes into the black box of the jury room.
Something still seems particularly warped there, but I can’t quite put my finger on it. Just like Brooke Adams in Invasion of the Body Snatchers.
Well, there’s the fact that it is a beautifully written Learned Hand opinion. I think it is a great teaching case, because it so clearly imparts the idea that there are many levels of potential similarity, and that you have to pick the right one. Hand even says in the case, just because it is hard to do, doesn’t mean that we shouldn’t make the effort.
That said, I’m with you on the oddity of it – my very first law review article was an attempt to make sense of how to tell when copying was “too much” in computer software, because the doctrinal tests don’t help that much.
On the prominence of Judge Hand — take a look at the relevant sections (on IP) in Gunther’s biography of Hand. The judge apparently fancied himself quite the aesthete, which accounts for some of the passages in Nichols that strike me, at least, as somewhat smug.
On the virtues of the opinion — I generally attribute its prominence to the kind of recursion that one often sees in law: A case become famous because it is frequently cited, and then it is frequently cited because it is famous. What I don’t know offhand is whether there was a moment when the case went from relative obscurity to relative prominence, or whether the copyright bar noted it at the time as a significant opinion. I’ll hazard a guess — the latter. To paraphrase old EF Hutton commercials, when Hand, J., spoke, people listened.
Either way, including Nichols in a casebook is almost obligatory, which is ironic, because I find the case very difficult to teach on the facts. (That alone distinguishes it from other copyright chestnuts, like Bleistein.) The law is easy to communicate, sure, but the facts of the case are inaccessible to students to the point that it becomes almost useless conversationally. I have tried for years to come up with a better contemporary equivalent, but I find that students generally don’t have sufficient familiarity with common cultural referents to make the point effectively. I have tried for years, for example, to work with Star Trek (the original) and Star Wars. Fortunately, now I have the updated motion picture and the more recent Star Wars films. I have also compared both ST and SW to Battlestar Galactica — the new one — which at least conveys the impression to students that I am not impossibly old. It conveys other impressions that are not always favorable(!), and in the end it is not clearly accessible to students, either.
So there’s a question for a post:
If you were to assemble an exemplar for teaching purposes of the issue in Nichols, based on contemporary film/TV/theater, what materials would you use?
I will often tell my students a story, beginning “Once Upon a Time”, and ask them to yell out a guess as to what story I’m telling as soon as they think I know. Sometimes I will use a story of star-crossed lovers, and there is always an increasing clamor of guesses, from the Twilight series to Romeo and Juliet to Wuthering Heights to Bonnie and Clyde to West Side Story (if I were in the class, as a dedicated Steve Martin fan, I might guess Roxanne). I will sometimes use other themes, too, such as the unpopular girl who turns out to be the coolest girl of all and gets the guy in the end. I then challenge them to think of other themes based on books/film/tv (contemporary tv crime dramas are good fodder). I think being able to compare the stories at various levels of detail helps them to isolate the notion of abstraction.
Not very contemporary, but I’ve used the Greatest American Hero case, showing a clip from the opening credits of GAH. (I presume familiarity with Superman.) But I think a more explicit “knock-off” captures the feel. (The district court opinion indicates there was evidence in the record that the Cohens and the Kellys was a deliberate attempt to capture part of the success of Abie’s Irish Rose.) I remember a couple of television series in the early 80s that attempted to ride the coattails of Raiders of the Lost Ark; perhaps there’s something similar in the last decade I’m not remembering.
Re: smugness, I call attention to it in class, because even though it may not have been what Hand was getting at, I strongly suspect both works would strike us today as offensive.
I should note my sense of weirdness goes beyond Nichols, and includes Arnstein v. Porter. What was going on in the 1930s and ’40s that generated these opinions?
Megan, that’s a really interesting exercise, I might want to try that. You should check out Eichel v. Marcin — Judge Manton does roughly the same thing with several contemporary plays.