Paraphrasing of copyrighted material

Last updated May 14, 2023

Paraphrasing of copyrighted material may, under certain circumstances, constitute copyright infringement. In most countries that have national copyright laws, copyright applies to the original expression in a work rather than to the meanings or ideas being expressed. Whether a paraphrase is an infringement of expression, or a permissible restatement of an idea, is not a binary question but a matter of degree. Copyright law in common law countries tries to avoid theoretical discussion of the nature of ideas and expression such as this, taking a more pragmatic view of what is called the idea/expression dichotomy. The acceptable degree of difference between a prior work and a paraphrase depends on a variety of factors and ultimately depends on the judgement of the court in each individual case.^[1]

In Germany

An early example of the concept of paraphrasing as a copyright issue arose with Johann Heinrich Zedler's application in 1730 for copyright protection in Saxony for his Grosses vollständiges Universal-Lexicon , one of the first encyclopedias. The publisher of a rival General Historical Lexicon said that Zedler's Universal Lexicon would not differ in content from this and other existing lexicons apart from paraphrasing.^[2] On 16 October 1730, the Upper Consistory court in Dresden rejected Zedler's request, and warned that he would be subject to confiscation and a fine if he reproduced any material from the General Historical Lexicon in his Universal Lexicon.^[3]

In the Soviet Union

The Soviet Union's Copyright Act of 1925 in essence said that a work created by a minimal paraphrase of an existing text could be considered a new work eligible for copyright.^[4] By 1991, the Copyright law of the Soviet Union had evolved to give much more protection to the author. Free use, similar to the English common law concept of fair use, was only allowed if it did not infringe upon the normal exploitation of the work or the legitimate interests of the author.^[5]

In the United States

United States copyright law protects original expressions but not facts, methods, discoveries, or other ideas being expressed, a doctrine known as the idea–expression distinction. Despite making this distinction, verbatim copying is not always required for copyright infringement, as paraphrasing is also prohibited in certain circumstances.^[6]

US copyright law originates in the Copyright Clause (Article I, Section 8, Clause 8) of the Constitution, and has been the subject of several federal statutes, most recently the Copyright Act of 1976. The basic two-part test for copyright infringement under the 1976 Act, described by the US Supreme Court in Feist Publications, Inc., v. Rural Telephone Service Co. , is (1) whether there is a valid copyright, and (2) whether there has been improper copying of the copyrighted work. The second prong also has a two-part test, first articulated in the Second Circuit case Arnstein v. Porter : (a) whether copying occurred (as opposed to independent creation), and (b) whether the copying amounts to an "improper appropriation", meaning that enough of the author's protected expression (and not unprotected ideas) was copied to give rise to a "substantial similarity" between the original work and the putative copy. Even if all prongs are met, there are fair use defenses that may defeat a claim of copyright infringement.^[7]

Beyond these basics, US copyright law is complex, confusing, and inconsistent, with a variety of tests employed by courts to determine when copyright has been infringed, including by paraphrasing. There is no single rule that defines when two works are substantially similar, or when paraphrasing is so "close" as to constitute infringement of a copyrighted expression as opposed to being a different way of expressing the same idea. There is a circuit split among the twelve federal appeals courts on substantial similarity analysis, with each circuit employing overlapping but unique approaches. Decisions are, by necessity, made on a case-by-case basis, with few universally-applicable principles.^[8]

Factual v. fictional works

When examining claims of copyright infringement, including by paraphrasing, US copyright law distinguishes between works of fiction (e.g., a novel) and works of fact (e.g, a history book or a set of instructions). Copyright protection for factual works is narrow, covering the author's original expressions, but not the facts or theories being expressed. In order to infringe, the copy must be "verbatim reproduction or very close paraphrasing".^[9]

Different courts adopt different approaches to analyzing whether paraphrasing in factual works constitutes infringement. Some courts have held that some factual works, particularly functional works such as instructions, lack the creativity required to meet the threshold of originality, and thus there can be no valid copyright under the first Feist prong. Other courts follow the "merger doctrine". Under the merger doctrine, if there are only a limited number of ways in which an idea can be expressed, the expression is said to have "merged" with the idea, and thus there can be no valid copyright under the 1976 Act. Some courts employ "thin copyright", finding that there is a valid copyright of factual works, but that it is afforded only limited protection against "virtual identicality" or "bodily appropriation of copyrighted expression", thus permitting paraphrasing that might be prohibited in other circumstances. Finally, some courts find that all prongs of the Feist and Arnstein tests are met, but that the copying is nevertheless permitted under the fair use doctrine. Fair use analysis includes multiple factors, one of which is the "nature of the copyright work," and some courts find that factual works provide greater leeway for fair use than fictional works.^[10]

Nonfiction literary works, such as history books, newspaper articles, and biographies, are treated as factual works with similarly narrow copyright protection. An author's unique expressions are protected, but not the facts and theories themselves. Even the selection and arrangement of facts may not be protectable. For example, an author may arrange a series of facts to support a theory for why a historical event occurred, but if the author could prevent others from using the same selection and arrangement of facts, the author would have an effective monopoly on the theory itself, which would run counter to US copyright law's prohibition on copyrighting ideas.^[11]

For fictional works, more than "very close paraphrasing" is protected. US copyright law protects against paraphrasing a story by, for example, copying a detailed plot sequence but using different language for the dialogue. However, under the doctrine of "scènes à faire", it does not protect more general patterns, such as story themes and character prototypes. Some courts will distinguish between "literal" similarities, such as verbatim duplication or paraphrasing, and "nonliteral similarities", such as the details of a novel's plot, characters, or settings.^[12] In his 2008 book Copyright's Paradox, discussing the conflict between protecting copyright and protecting free speech, Neil Netanel says, "Yeats [borrowed] from Shelley; Kafka from Kleist and Dickens; Joyce from Homer; and T.S. Eliot from Shakespeare, Whitman and Baudelaire, all in ways that would infringe today's bloated copyright."^[13]

In music

Paraphrase may apply to music as well as to writing. It was commonplace for Baroque, Classical and Romantic composers to create variations on each other's work without permission. This would not be allowed today.^[14]

Related Research Articles

A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, educational, or musical form. Copyright is intended to protect the original expression of an idea in the form of a creative work, but not the idea itself. A copyright is subject to limitations based on public interest considerations, such as the fair use doctrine in the United States.

The idea–expression distinction or idea–expression dichotomy is a legal doctrine in the United States that limits the scope of copyright protection by differentiating an idea from the expression or manifestation of that idea.

Software copyright is the application of copyright in law to machine-readable software. While many of the legal principles and policy debates concerning software copyright have close parallels in other domains of copyright law, there are a number of distinctive issues that arise with software. This article primarily focuses on topics particular to software.

A scène à faire is a scene in a book or film which is almost obligatory for a book or film in that genre. In the U.S. it also refers to a principle in copyright law in which certain elements of a creative work are held to be not protected when they are mandated by or customary to the genre.

Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985), was a United States Supreme Court decision in which public interest in learning about a historical figure's impressions of a historic event was held not to be sufficient to show fair use of material otherwise protected by copyright. Defendant, The Nation, had summarized and quoted substantially from A Time to Heal, President Gerald Ford's forthcoming memoir of his decision to pardon former president Richard Nixon. When Harper & Row, who held the rights to A Time to Heal, brought suit, The Nation asserted that its use of the book was protected under the doctrine of fair use, because of the great public interest in a historical figure's account of a historic incident. The Court rejected this argument holding that the right of first publication was important enough to find in favor of Harper.

Castle Rock Entertainment Inc. v. Carol Publishing Group, 150 F.3d 132, was a U.S. copyright infringement case involving the popular American sitcom Seinfeld. Some U.S. copyright law courses use the case to illustrate modern application of the fair use doctrine. The United States Court of Appeals for the Second Circuit upheld a lower court's summary judgment that the defendant had committed copyright infringement. The decision is noteworthy for classifying Seinfeld trivia not as unprotected facts, but as protectable expression. The court also rejected the defendant's fair use defense finding that any transformative purpose possessed in the derivative work was "slight to non-existent" under the Supreme Court ruling in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).

The Copyright Act of 1976 is a United States copyright law and remains the primary basis of copyright law in the United States, as amended by several later enacted copyright provisions. The Act spells out the basic rights of copyright holders, codified the doctrine of "fair use", and for most new copyrights adopted a unitary term based on the date of the author's death rather than the prior scheme of fixed initial and renewal terms. It became Public Law number 94-553 on October 19, 1976 and went into effect on January 1, 1978.

The copyright law of the United States grants monopoly protection for "original works of authorship". With the stated purpose to promote art and culture, copyright law assigns a set of exclusive rights to authors: to make and sell copies of their works, to create derivative works, and to perform or display their works publicly. These exclusive rights are subject to a time limit, and generally expire 70 years after the author's death or 95 years after publication. In the United States, works published before January 1, 1928, are in the public domain.

Substantial similarity, in US copyright law, is the standard used to determine whether a defendant has infringed the reproduction right of a copyright. The standard arises out of the recognition that the exclusive right to make copies of a work would be meaningless if copyright infringement were limited to making only exact and complete reproductions of a work. Many courts also use "substantial similarity" in place of "probative" or "striking similarity" to describe the level of similarity necessary to prove that copying has occurred. A number of tests have been devised by courts to determine substantial similarity. They may rely on expert or lay observation or both and may subjectively judge the feel of a work or critically analyze its elements.

Data East USA, Inc. v. Epyx, Inc. 862 F.2d 204, 9 U.S.P.Q.2d (BNA) 1322 was a court case between two video game manufacturers, where Data East claimed that their copyright in Karate Champ was infringed by World Karate Championship, a game created by Epyx. Data East released Karate Champ in arcades in 1984, and the game became a best-seller and pioneered the fighting game genre. The next year, Epyx published World Karate Championship for home computers, which sold 1.5 million copies. Data East sued Epyx, alleging that the game infringed on their copyright and trademark.

The Abstraction-Filtration-Comparison test (AFC) is a method of identifying substantial similarity for the purposes of applying copyright law. In particular, the AFC test is used to determine whether non-literal elements of a computer program have been copied by comparing the protectable elements of two programs. The AFC test was developed by the United States Court of Appeals for the Second Circuit in 1992 in its opinion for Computer Associates Int. Inc. v. Altai Inc. It has been widely adopted by United States courts and recognized by courts outside the United States as well.

In Canadian copyright law there are several Limitations to Copyright. These limitations define the scope of copyright protection by placing limits on ability of copyright holders to deny other users or creators the ability to employ the ideas, facts, and concepts underlying their protected expression.

Structure, sequence and organization (SSO) is a term used in the United States to define a basis for comparing one software work to another in order to determine if copying has occurred that infringes on copyright, even when the second work is not a literal copy of the first. The term was introduced in the case of Whelan v. Jaslow in 1986. The method of comparing the SSO of two software products has since evolved in attempts to avoid the extremes of over-protection and under-protection, both of which are considered to discourage innovation. More recently, the concept has been used in Oracle America, Inc. v. Google, Inc.

Salinger v. Random House, Inc., 811 F.2d 90 is a United States case on the application of copyright law to unpublished works. In a case about author J. D. Salinger's unpublished letters, the Second Circuit held that the right of an author to control the way in which their work was first published took priority over the right of others to publish extracts or close paraphrases of the work under "fair use". In the case of unpublished letters, the decision was seen as favoring the individual's right to privacy over the public right to information. However, in response to concerns about the implications of this case on scholarship, Congress amended the Copyright Act in 1992 to explicitly allow for fair use in copying unpublished works, adding to 17 U.S.C. 107 the line, "The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

Reyher v. Children's Television Workshop was a case where the author and illustrator of a children's book sued a company that had published a TV skit and a magazine story with a similar title and plot, claiming copyright infringement. The story was based on an old Russian folk tale. The court found that the plot or theme was not subject to copyright, and there had been no infringement since the book and the story or skit were quite different in all other respects. The court used the "total concept and feel" standard in reaching their decision.

Nutt v. National Institute Inc. was an early case in which it was found that copyright extended beyond the words of a work. The court found that "The infringement need not be a complete or exact copy. Paraphrasing or copying with evasion is an infringement, even though there may be little or no conceivable identity between the two."

Wainwright Securities v. Wall Street Transcript Corp (1977) was a case in which a weekly newspaper was found to have infringed on the copyright of a publisher of reports that analyzed corporate finances, risks and opportunities. The newspaper's defense that the findings of such reports were news items was rejected, since the newspaper was found to have violated copyright through substantial similarities with the expression used in the Wainwright reports.

Wright v. Warner Books (1991) was a case in which the widow of the author Richard Wright (1908–1960) claimed that his biographer, the poet and writer Margaret Walker (1915–1998), had infringed copyright by using content from some of Wright's unpublished letters and journals. The court took into account the recent ruling in Salinger v. Random House, Inc. (1987), which had found that a copyright owner had the right to control first publication, but found in favor of Walker after weighing all factors. The case had broad implications by allowing the use of library special collections for academic research.

The protection of intellectual property (IP) of video games through copyright, patents, and trademarks, shares similar issues with the copyrightability of software as a relatively new area of IP law. The video game industry itself is built on the nature of reusing game concepts from prior games to create new gameplay styles but bounded by illegally direct cloning of existing games, and has made defining intellectual property protections difficult since it is not a fixed medium.

Capcom U.S.A. Inc. v. Data East Corp., 1994 WL 1751482 was a 1994 legal case related to the copyright of video games, where Capcom alleged that Data East's game Fighter's History infringed the copyright of Capcom's game Street Fighter II. It was revealed that the design documents for Fighter's History contained several references to Street Fighter II, leading Capcom to sue Data East for damages, as well as a preliminary injunction to stop the distribution of the infringing game. In spite of the intentional similarities between the two games, the court concluded that Data East did not infringe upon Capcom's copyright, as most of these similarities were not protected under copyright. Judge William H. Orrick Jr. applied a legal principle known as the merger doctrine, where courts will not grant copyright protection where it would effectively give someone a monopoly over an idea.

References

↑ Bently, Davis & Ginsburg 2010, p. 191-192; Head 2006, p. 243.
↑ Kirchhoff 1891, pp. 198.
↑ Order against Zedler.
↑ Levitsky 1964, p. 101.
↑ Elst 2005, p. 376.
↑ Lippman 2013, p. 523; Barrett 2008, pp. 109, 111, 130; Gorman 2006, pp. 6, 23–24, 26.
↑ Lippman 2013, pp. 517, 523–524; Barrett 2008, pp. 129, 164; Gorman 2006, p. 25.
↑ Lippman 2013, pp. 519, 525–533; Barrett 2008, pp. 129, 131–133; Gorman 2006, p. 26.
↑ Lippman 2013, p. 551; Barrett 2008, p. 131; Gorman 2006, pp. 6, 26.
↑ Barrett 2008, pp. 110–112, 130, 164; Gorman 2006, pp. 25–28.
↑ Barrett 2008, pp. 111–112.
↑ Lippman 2013, p. 524; Barrett 2008, pp. 131–132; Gorman 2006, pp. 26, 107.
↑ Saint-Amour 2011, p. 31.
↑ Patry 2012, p. 100.

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