Independent creation -- defendant's creation of its work without copying plaintiff's -- hearkens back at least to the English case of Roworth v. Wilkes, 1 Campbell 94, 98 (1807) and is a cornerstone of copyright law, exonerating the independent creator from all liability. Without the defense, those who didn't copy would be infringers nevertheless. In the area of popular music and creatively-challenged works, where similarities are more likely to arise from the nature of the subject matter, independent creation prevents copyrights from becoming patents.
Surprisingly, the 20th century began in the United States on the wrong foot with the Second Circuit's affirmance of an early Learned Hand district court opinion holding that independent creation was not a defense to an infringement claim. Hein v. Harris, 175 F. 875 (S.D.N.Y.), aff'd, 183 F.2d 107 (2d Cir. 1910)(This case along with discussion of the dispute and musical samples is featured on the Columbia University Law School Arthur W. Diamond Law Library Music Plagiarism Project's website. I thank Timothy Phillips for pointing the site out to me). Hand subsequently thought better of the question in Fred Fisher, Inc. v. Dillingham, 298 F. 145 (S.D.N.Y. 1924), and in Arnstein v. Edward B. Marks Music Corp., 82 F.2d 275 (2d Cir. 1936), court of appeals Judge Hand expressly disavowed Hein because it was "contrary to the very foundation of copyright law, and was plainly an inadvertence which we now take this occasion to correct." In that same year, in Sheldon v. MGM Pictures Corp., 81 F.2d 49, 54 (2d Cir. 1936), Hand had already foreshadowed Arnstein when he famously wrote "[I]f by some magic a man who had never known it were to compose anew Keats's 'Ode on a Grecian Urn,' he would be an 'author,' and if he copyrighted it, others might not copy that poem, though they might of course copy Keats's."
The principle being well-established now is not, unfortunately, a guarantee that it cannot be undermined. One way independent creation is threatened is procedural, the misdescription of it as an affirmative defense. It is not; it is instead a denial of copying. The difference is significant. Once plaintiff has made out a prima facie case, defendant may interpose an affirmative defense for which defendant bears the burden of production and persuasion. By contrast, where defendant denies an element of plaintiff's prima facie case, the burden of persuasion remains with plaintiff, although the burden of production may or may not shift as the case proceeds. Independent creation is a denial of a central element of plaintiff's prima facie case, copying. Plaintiff always bears the burden of persuasion on copying and initially bears the burden of production. The best discussion of these points (including copyright) is in a Third Circuit trade secrets case, Moore v. Kulicke & Soffa Industries, Inc., 318 F.3d 561, 573-574 (3d Cir. 2003).
The First, Fourth, Sixth, Seventh, Ninth, and Eleventh Circuits get this point right. Consistent with its historical problems with the doctrine, some panels of the Second haven't, Procter & Gamble Co. v. Colgate-Palmolive Co., 199 F.3d 74, 77 (2d Cir. 1999); Repp v. Webber, 132 F.3d 882, 889 (2d Cir. 1997), 1999 U.S. App. LEXIS 27393 (2d Cir. Oct. 27, 1999). This last case also raises the second attack on independent creation, the striking similarity doctrine, which will be the subject of Thursday's posting. [If Grokster is handed down Thursday, that case will be featured as Friday's posting].
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I have never been satisfied with Judge Hand's "magic poet" dictum. Quite apart from the practical objection that the magic poet's claim of independent creation would simply not be believed, I think it wrong to suppose that the public must shoulder the impossible burden of distinguishing indistinguishables. In the case of exact replication of publici juris matter, copyright should be denied regardless of independent creation. This would not "turn copyrights into patents" because it would only apply in cases if indistinguishability.
One should not immediately dismiss the possibility of holding authors to a higher standard of originality. Consider this thought experiment: If all Irish jigs were suddenly brought back under copyright, would it be possible to create a new Irish jig without being liable to charges of "unconscious infringement" ? I suspect not. The genre would be super-saturated.
The point here is one that Jessica Litman made years ago: in the law, originality and copying are opposites, but in the creative process, they can be complementary. It is the ability to copy from the public domain that to some extent makes originality possible. This means that the public's need to be able to distinguish the extent of the monopolists' monopolies--to tell what is and is not publici juris --needs as much attention from lawmakers and judges as the privileges and rememdies of the monopolists. This is a fault I find with Judge Hand's dictum. He said that one couldn't copy the magic poet's poem but one could copy Keats's. He does not seem to have thought about how a conscious citizen would be able to tell the difference. If in order to make the distinction clearer we might need to hold authors to a stricter standard of originality, we should at least consider it.
Here is the first stanza of the Ode on a Grecian Urn. One may copy this regardless of how many magic poets and ignorant judges try to keep us from what is ours:
Thou still unravished bride of quietness,
Thou foster-child of silence and slow time,
Sylvan historian, who canst thus express
A flowery tale more sweetly than our rhyme:
What leaf-fringed legend haunts about thy shape
Of deities or mortals, or of both,
In Tempe or the dales of Arcady?
What men or gods are these? What maidens loth?
What mad pursuit? What struggle to escape?
What pipes and timbrels? What wild ecstasy?
Judge Posner has a more evidentiary take on these questions as does Doug Lichtman at U Chicago. I hope to tie these points together in tomorrow's post on striking similarity which is where one confronts the issues most starkly, i.e., what if two works are very similar in highly idiosyncratic passages but plaintiff can't prove access (under the very liberal definition of that word)? Do we say too bad its a failure of proof or do we adopt work arounds and if so who shares what burdens of proof?
Oops. I meant "conscientious", not "conscious".
Some recent cases might be taken as showing one tendency in post-Feist evolution of the originality concept. The Hyperlaw v. West case seems to have reached on opposite conclusion on almost identical facts from the pre-Feist cases involving copying from Westlaw's reports. The Bridgeman v. Corel case tends in a different direction from the old Catalda Fine Arts case. (Professor Patry's contribution to Bridgeman v. Corel was to send a letter to the court on some international implications of the case. This was part of the reason the court issued a second opinion, making it almost twice as rewarding a case for study as it would otherwise have been. Thanks, Professor!)
Of course this is only one tendency in the law. Cases might be found displaying the opposite tendency.
This is one of the best legal blogs I've run across. Always thought-provoking.
It strikes me that on this subject the real issue is how to apply the summary judgment and JNOV standards to the elements of infringement. Of course the burden of production and of proof is upon the plaintiff. The question is what evidence is enough to 1) establish a genuine issue of material fact, and then 2) prove copying by a preponderance of the evidence.
I look forward to your piece on "striking similarity," but I think it reveals that the formulation of the proof required in the absence of direct evidence of copying -- access + substantial similarity -- is an artificial construct. Copying is an element of infringement. Proof of an element requires evidence that supports the inference. It doesn't ordinarily demand specific proof. Elements don't have sub-elements.
Similarity, at some level, is probative of copying. You can have striking similarities that are not substantial, e.g. common misspelled words, that prove access conclusively, but won't get you past defendant's motion for summary judgment because the copying is plainly insubstantial.
But it doesn't seem to me that you should need expert testimony that similarities are otherwise teleologically inexplicable in order to satisfy the burden of production, raise a genuine issue of material fact, and get past defendant's motion for summary judgment.
Why shouldn't "substantial similarity," however that might be assessed in context, allow the inference of copying as one plausible explanation (at least as logical and as likely as independent creation). Why not collapse the overlapping sub-elements of striking similarity + substantial similarity, in a single standard of production/proof for the single element of copying -- perhaps "strikingly substantial similarity" -- that can be pled and proven without expert testimony.
John:
Thanks for the compliment. Your comments about evidentiary issues are, for me, right on point and tomorrow's blog will take them up. I look forward to your further remarks.
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