Substantial Similarity and Junk Science: Reconstructing the Test of Copyright Infringement
Robert F. Helfing
Article

  The full text of this Article may be found here.

30 Fordham Intell. Prop. Media & Ent. L.J. 735 (2020).

Article by Robert F. Helfing*

ABSTRACT

[A]

s the standard of copyright infringement, “substantial similarity” is an ambiguous concept that produces unpredictable decisions often inimical to the purposes of copyright law. This Article explains the deficiencies of infringement tests based upon that standard. It also provides an innovative interpretation of copyright protection and presents a new test of infringement designed to directly determine whether that protection has been violated.

* Robert F. Helfing is an associate adjunct professor of copyright law at Southwestern Law School. He previously practiced copyright law and served as chair of the Intellectual Property Department at Sedgwick LLP. As a practicing attorney, Prof. Helfing authored and argued the appeals in Metcalf v. Bochco, 294 F.3d 1069 (9th Cir. 2002) and Funky Films, Inc. v. Time Warner Entm’t Co., 462 F.3d 1072 (9th Cir. 2006), cases frequently cited for their application of the test for copyright infringement. Mr. Helfing has authored amicus briefs to the U.S. Supreme Court and the Ninth Circuit Court of Appeals regarding the infringement test. Among other articles, he wrote Substantial Similarity in Literary Infringement Cases: A Chart for Turbid Waters, 21 UCLA L. REV. 1 (2014), examining the courts’ application of the test as applied specifically in literary infringement cases.