Thursday, June 23, 2005

Striking Similarity and Evidentiary Problems

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.


  1. Excellent post! Though, I almost expected to be reading it in the morning. Did you intend to embargo it in some way? Here it's 20:20 on Wednesday, and it thinks it was posted at 8:00 on Thursday. Something funny with Blogger, perhaps? Maybe you're in the Urals, or time-traveling? Yeah, that's it...time travel.

  2. No time travel: My inlaws are in Turkey, but I was in Connecticut. My wife needed the computer in the later evening so I just sat down after dinner Wednesday night and did it. Plus, Doug Lichtman got me worried that if Grokster came down Thursday no one would read it. I put alot of time into the posting and didn't want it to be a complete loss, so I posted it early.

  3. Interesting series of posts. From my perspective, there are yet other aspects of copyright law that interfere with any real ability of defendants to independently create a copyrighted work. Among the highest on my list is the subconscious copying doctrine, which reinforces the powerful implications of copyright as a strict liability tort. Collectively, the combination of allowing the plaintiff to establish copying circumstantially plus strict liability, IMO, makes independent creation chimeral. Eric.

  4. smokey2:23 PM

    Maybe this true tale with names obscured to protect the very guilty is useful to this dialogue.

    Some years ago a very famous work of popular music appeared for the first time in an equally famous movie. Twelve months or so after release, a claim is made against the film company and the "original" artist by the composer of a very, very modestly released recording in the same genre, Modest Song. Only 100 or so copies of Modest Song had ever been distributed and then only in a single European country. Further, only one radio station in that country's capital had ever played the song and then only a few times in the course of one or two weeks. The now famous artist and the claimant/composer had never met and were of completely different social circles, different nationalities, spoke different languages and lived thousands of miles apart.

    Those facts weren't just admitted to by the claimant, they were in effect part of the pleading.

    By now you have guessed that the two works were strikingly similar; but only in part though with respect to the central "hook." The hook was also strikingly simple and not particularly strong in originality though no expert had come upon its exact sequence and pacing in pre-existing works.

    Insurance lawyers would like claims like these tossed out on summary judgment. Prove access first and then prove copying is what I think you, Professor, are saying. That burden rests with the claimant. On summary judgment, an efficient judge should rule in favor of the defendant if not a scintilla of evidence is brought forward on access.

    In our story, the claimant had discovery and couldn't come up with access. On the other hand, the claimant couldn't find a single written or recorded record of how the famous artist composed his work.

    In the sequence you seem to propose, the defendant would never have to affirmatively prove authorship unless and until access became an issue. But in my view, although the registration is prima facie proof of authorship, if authorship is contested on the grounds of either direct evidence or inferred through a striking similarity the burden should shift to the defendant to establish some trail of actual authorship of the work. In this true story, that trail consisted of a claim by the famous artist that he composed by humming in the shower and then would remember the sequence and hum it to an arranger, sometimes months later, or hum it into a dictation machine with a tape that was constantly erased by new messages.

    In my view, all rules of evidence and all burdens and presumptions of proof must start from the premise that in litigations people will lie. The motivations are many and sometimes quite innocent - - sometimes, as in the case of Ronald Regan's failing memory, the result of a tragic illness. But lie they will and in most instances, lie they must. Burdens and presumptions should not enable liars and in the best case should trip them up.

    In this story, counsel on the defense side ultimately did find out that the famous artist was traveling away from his home at the exact time that the Modest Song was played by that one station and that, amazing as it might seem, the famous artist sojourned for two days in the same capital city at the same time that the radio station performed the song. Of course the famous artist denied ever hearing the song or listening to the radio - - except that it was established that the elevator in the hotel where the famous artist stayed had music over loudspeakers and the source of that programming was the radio station in question.

    Striking similarity in copyright cases, like it or not from a principled analytical point of view, is the smoke from the fire.

  5. Anonymous5:49 PM

    I don't think the "subconscious copying doctrine" is as big a deal as people make it out to be. There's one big case, and even that case doesn't need that doctrine in order to be decided.

    I don't even think it's fair to call subconsious copying a doctrine, really. Mostly, it's a way to say George Harrison didn't really mean to copy the song, but did anyway. The case still comes out the same way if you apply the access + sub. similarity test without any mention of subconscious copying.

  6. Smoky's facts would, I believe, support a finding of access (a reasonable opportunity to hear the work), so you don't need striking similarity. I think rules of evidence and presumptions have to include not just human nature but also substantive elements of the cause of action and the ordinary rule that plaintiffs bear the burden of persuasion. People do lie and that's where good detective work comes in, like the Modest Song Story or one involving Harry Potter which proved that plaintiff had written her work on paper that wasn't invented until after defendant's work came out. Lies occur on both sides, after all, so you would have to factor in lying on both sides. This thread also gave me the idea for tomorrow's post "Rules versus Standards."

  7. I used to work in the game industry, and while there was more than enough theft and copying, something that struck me was the way that people would come up with the same ideas -- often when in the same design groups.

    To a consumer, the games looked close enought that "they had to be copies" -- but to a designer who knew his or her stuff it was obvious that they hadn't touched.

    My favorite example is a game that had the same title as one I had framed out for the same design group it came from. At the same time, another game with about the same map emerged later, from the same company.

    However, the map from the third game turns out to be three years older than the first game's proposal. One look at the second game and I knew that while it had the same genre and setting, no designer who had worked on it had used any core concepts from my proposal.

    If "experts" weren't, as they call them in the industry, so often "whores" it wouldn't be such a problem. Not to mention, issues such as proving access when people are trying to lie (I'm glad they nailed the guy who wandered through a hotel, picked up a hook and stole it).

  8. You write that "any inference must be based on an established fact (access) from which one may then infer copying from yet other evidence.... But with striking similarity there is no established fact from which an inference is made."

    It seems to me that striking similarity is as much a "fact" as access, and may be more probative of copying (the element we are trying to prove by circumstantial evidence), particularly where the proof of access is itself only a conjecture drawn from evidence of opportunity, eg. the defendant was visiting and the protected work was on the radio in the same city at the same time.

    Hypothetical: You have a 20,000 word novella; never published because it was autobiographical and deeply personal; but it was authored in your signature Joycean style that includes invented words and page-long sentences, for which you are known throughout the literary world. You cannot allege that it ever left your office, or that the defendant was ever in your office. But you can allege and prove that defendant's work (attached as Exhibit A) is identical to the protected work -- to the word, to the comma, to the period; and that the 12 year-old defendant's third-grade English compositions (attached as Exhibit B) refute any possibility of independent creation.

    You note that "Access is a component of copying because you can't copy if you don't have access." Why then can't you infer access from other very strong evidence of copying. I don't think this amounts to suspending the rules of evidence so much as applying one of the oldest -- res ipsa loquitur.

  9. Mr. Patry, You write:

    "In the Second Circuit you thereby automatically survive summary judgment."

    I'm not so sure about that.

    In my present case, (Civil Action 04 CV 7417 (GBD)) we have a number of experts asserting Substantial Similarity to the other side's having no experts at all. Indeed, they have conceded acess and a number of other issues in order not to have their client, Dan Brown, be obliged to file an affidavit.

    And as is usual and expected, my opponents, Random House, have asked for Summary Judgement.

    Their plea, however, is one that neither I nor my attorneys (lead by Donald David at Cozen etc.) feel I will "automatically survive."

    The judicial standards -- and thus the measure of justice -- is so fuzzy and uncertain as to be absolutely quantum in nature.

    More information about all this can be found at:


  10. And my understanding is that the Second Circuit prefers to argue "probative similarity" before getting into substantial similarity...something which seems to be regularly ignored if one goes by filings atthe District Court level.