Traditionally courts have place great weight on the issue of substantial similarity in adjudicating copyright infringement lawsuits. Once success is proven, a court will usually find infringement if the works are viscerally determined to be substantially similar. This Article criticizes the traditional approach as failing adequately to distinguish copying from misappropriation, failing adequately to distinguish ideas from expression, failing to provide adequate guidelines for determining misappropriation, and as overlapping with fair use determinations. The Article also criticizes variations on the traditional approach imposed by the Third and Ninth Circuit Courts of Appeal as not remedying the traditional approach's fundamental shortcomings. The Article proposes replacing the substantial similarity test with fair use considerations. Such an approach would force courts to elucidate their reasons for determining infringement, and thus would promote consistency and predictability.
20 U.C. Davis L. Rev. 719 (1987)