How Close can you Get

Substantial Similarity in the Context of Works of Visual Art

Authored by: Dale M. Cendali , Shanti Sadtler Conway

The Routledge Companion to Copyright and Creativity in the 21st Century

Print publication date:  November  2020
Online publication date:  November  2020

Print ISBN: 9781138999251
eBook ISBN: 9781315658445
Adobe ISBN:


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A common question that comes up for creators is: How do you draw the line between inspiration and being found liable for copyright infringement? The key to answering this question often rests on the well-established copyright principle referred to as the “idea/expression dichotomy,” which provides that copyright does not protect ideas , but rather only protects specific creative expression . This essay illustrates the idea/expression dichotomy by comparing cases in the field of visual arts, including photography, paintings and drawings, textiles, and sculptural works. These cases show that in analyzing works for substantial similarity, courts carefully compare the works at issue and consider whether the defendant’s work merely reflects the same idea, or whether it copies specific, creative expression. Where the defendant uses the same particular visual details, flourishes, etc., infringement will be more likely. It will be less likely where the defendant used the same general idea or concept, but expressed it in a different way by using different creative details. It is safer for a creator to merely borrow an idea or concept, and make her own creative choices and thus depict the idea in her own creative, expressive way.

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