In commenting on yesterday's posting on the independent creation defense, John Noble referred to evidentiary issues that are raised in infringement actions. In particular, he wondered "what evidence is enough to 1) establish a genuine issue of material fact, [for summary judgment disposition] and then 2) prove copying by a preponderance of the evidence."
Professor Douglas Lichtman at the University of Chicago Law School has a very interesting article (existing in various forms) called "Copyright as a Rule of Evidence," available at this link. It is unusual for law professors to focus on such practice oriented issues, much less to use them as Lichtman does to attempt to explain doctrine. My former colleague at Cardozo, Peter Tillers (a blogger for JURIST), is exceptional for his rigorous approach to evidence, much of which is fascinating but which is also highly theoretical. (See his "Dynamic Evidence Home Page"). His work on inference and inductive reasoning is very insightful and he is also a founder and editor of the amazing peer-reviewed Law, Probability & Risk, an Oxford University online journal. Anyone wanting to seriously think through evidence would benefit from reading the journal and Peters' many fine works (he also edited some volumes of Wigmore), but it is not easy going.
Professor Lichtman's article covers originality, and after reviewing traditional rationales for the creativity requirement (like "the public has a strong interest in making full use of factual information" in the case of compilations, or other works of "low social value") he also asks whether there is an evidentiary rationale: uncreative works pose extraordinary problems of proof since a court faced with two remarkably similar but similarly uncreative works "would find it virtually impossible to determine whether one copied from the other... ."
He next tackles fixation, merger, and registration, but doesn't really tackle striking similarity. I hope he does in a future work because striking similarity is all about evidence. It is my view that the use of striking similarity is always a mistake and that the doctrine drives a stake through the heart of basic principles of copyright law in a misguided effort to compensate for plaintiff's failure to meet its prima facie burden of proving access and copying. The origins of striking similarity go back to Judge Frank's disastrous (but nevertheless oft-cited) opinion in Arnstein v. Porter, 154 F.2d 464 (2d Cir. 1946)(Judge Clark's dissent accused Frank of having a "book-burning mentality"). As readers of this blog will quickly grasp, the case really has to do with the requisite evidence to survive summary judgment, a problem that still haunts the Second Circuit.
In brief, we can say that the infringement elements of plaintiff's prima facie case are access plus copying plus material similarities in protectible expression. Access is a component of copying because you can't copy if you don't have access. But access isn't copying and the copying must still be material. Access is broadly defined to include not only literal access but also a reasonable opportunity to see or hear the work (the latest bubble-gum pop song you can't escape if you try, for example). Where access is established and some similarities (even in non-protectible material) are shown between the parties' works, copying can be presumed, but this is of course rebuttable.
Arnstein held that even where access is absent, one can infer both copying and the copying necessary to also prove material appropriation, if the similarities "are so striking as to preclude the possibility that plaintiff and defendant independently arrived at the same result." Striking similarity thus collapses the entire infringement analysis into itself. One can say, ah but it just permits an inference. Right, and tell that to a jury, as the BeeGees found out. (They were saved by a jnov).
Any inference must be based on an established fact (access) from which one may then infer copying from yet other evidence (e.g., common errors or some level of similarity)(The best discussion of this is Judge King's dissenting opinion in the first Bouchat v. Baltimore Ravens, Inc. opinion, 241 F.3d 350, 365 (4th Cir. 2000)). But with striking similarity there is no established fact from which an inference is made. To the contrary, plaintiff seeks to create an inference and to then use that free-floating inference to prove all elements of its prima facie case.
And how does one establish striking similarity? Through expert witnesses. For very little money one can always get an expert to say something like "the similarities are so striking they can only be explained by copying." In the Second Circuit you thereby automatically survive summary judgment. That's the lesson of Repp v. Webber, 132 F.3d 882 (2d Cir. 1997), aff'd after trial, 1999 U.S. App. LEXIS 27393 (2d Cir. Oct. 27, 1999), endorsed by Langman Fabrics v. Graff Californiawear, Inc., 160 F.3d 106, 115-116 (2d Cir. 1998). Surprisingly, it is the Ninth Circuit that has provided the adult supervision on the issue, rejecting reliance on experts in Onofrio v. Reznor, 2000 U.S. App. LEXIS 2835 (9th Cir. 2000).
There is no reason the basic rules of evidence should be suspended for copyright litigation.