Carys J Craig, ‘Transforming “Total Concept and Feel”: Dialogic Creativity and Copyright’s Substantial Similarity Doctrine’, 38 Cardozo Arts and Entertainment Law Journal (forthcoming), available at SSRN. Carys Craig is far from the first scholar to criticize copyright law’s vague ‘substantial similarity’ test for infringement, especially when that test is based on the even vaguer ‘total concept and feel’ standard, but the difference is that in her new article, ‘Transforming “Total Concept and Feel”: Dialogic Creativity and Copyright’s Substantial Similarity Doctrine’, Professor Craig advances an alternative approach that might get some traction. Professor Craig centers her critique on a recent case that involves the two images below. A jury could look at these two photos and decide that an ordinary person could view the ‘total concept and feel’ of the two images as the same. But Craig explains why that’s not the right outcome …” (more)
[Christopher J Sprigman, JOTWELL, 5 March]
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