Reading list: judging similarity in copyright

Shyamkrishna Balganesh, Irina D. Manta, & Tess Wilkinson-Ryan, Judging Similarity, 100 Iowa L. Rev. (forthcoming 2014)

Our first study reveals that basic knowledge about the act of copying, meaning that one work was copied from the other, greatly influences individuals’ assessments of similarity. And since substantial similarity is presented as a question to the jury once copying as a factual matter is shown to exist, the substantial similarity question is structurally skewed in favor of a jury’s finding greater—i.e., substantial—similarity between the two works. Our second study shows that in addition to simple knowledge about the copying, additional information about the creator’s efforts in producing the work also trigger individuals’ intuitions that cause them to find a greater amount of similarity between two works. In some ways, this finding is perhaps more troubling for copyright law because it suggests that juries, who are the decisionmakers on the similarity question, are likely introducing variables into the analysis/comparison that copyright law’s devices have over the years worked hard to eliminate from consideration altogether. A creator’s labor/effort is one such prominent consideration, which copyright jurisprudence in the United States has uniformly jettisoned as irrelevant.

Also, the second study tested information about a negative/substitutionary effect on the market and found that such information didn’t significantly increase judgments of similarity, which I find equally intriguing.