cyckV4

A Two-Part Test for Copyright Infringement 411
Questions:
1.) If the characters are under copyright, and Anderson’s “treatment” is thus an unauthorized
derivative work, not eligible for copyright protection, what does it matter that
Stallone had publicly offered ideas similar to the ones Anderson put in the screenplay
prior to seeing it? Why does the court mention it? To pose the counterfactual, suppose
Stallone had never thought about any of these plot twists, had access to a screenplay of
Anderson’s and taken all of it—down to the exact language of the script—does Anderson
still lose on the copyright claim?
2.) Should we have copyright over characters? Why? Why not? Think of the blockbuster
movies featuring comic book characters. Are these an argument for copyright protection
of characters or against it?
3.) Has James infringed copyright with his Hamnet character described in problem 12-1 e.)?
d.) A Two-Part Test for Copyright Infringement
We have discussed the line courts must draw between idea and expression, the
process by which unprotectable elements are filtered from computer software and the reach
of copyright over characters. We now turn to the way (actually, the ways) that courts assess
claims of illicit copying. Portions of this discussion should be familiar from Computer
Associates v. Altai, but there they were in the specialized context of software.
In the 1946 case Arnstein v. Porter, the Second Circuit laid out a seminal twopronged
test for copyright infringement. This was one of many lawsuits brought by
songwriter Ira Arnstein, who was convinced that more successful songwriters were
stealing his music and made sometimes outlandish allegations of copying. In this case,
he claimed that several songs by Cole Porter infringed his works, even though there were
few significant similarities. While Arnstein lost his other lawsuits at the summary
judgment stage, here the court denied Porter’s summary judgment motion and set an
unusually high bar for winning these motions. Later cases tempered Arnstein’s summary
judgment standard, and the current requirement is that there is “no genuine issue of
material fact.” But its bifurcated test endures, and it is excerpted below.
Arnstein v. Porter
154 F.2d 464 (2d Cir. 1946)
FRANK, Circuit Judge.
. . . [I]t is important to avoid confusing two separate elements essential to a
plaintiff’s case in such a suit: (a) that defendant copied from plaintiff’s copyrighted work
and (b) that the copying (assuming it to be proved) went to far as to constitute improper
appropriation.
As to the first—copying—the evidence may consist (a) of defendant’s admission
that he copied or (b) of circumstantial evidence—usually evidence of access—from which
the trier of the facts may reasonably infer copying. Of course, if there are no similarities,
no amount of evidence of access will suffice to prove copying. If there is evidence of access
and similarities exist, then the trier of the facts must determine whether the similarities are