Don't worry - some of these issues and cases are pretty tough to grasp. Clearly, it is an area that is not well-defined, and is highly contextual. But make sure you think about what Baker v. Selden was really about -- and why, and, of course, WHO CARES?
I was reading through the notes at the end of the Arnstein case, and I was a little confused by note 2 on page 480. The note states that the test for copying is an objective, sliding scale test between access and similarity, while the test for improper appropriation is a subjective test (whether there is substantial similarity in the eyes and ears of the trier of fact).
ReplyDeleteHowever, Judge Frank in Arnstein stated that improper appropriation is determined from "the response of the ordinary lay hearer." It seems to me that if anything can really be called "objective" it would be the test for improper appropriation as determined under a reasonable person standard as described in Arnstein (unless it really is to be determined from the subjective perspective of the trier of fact as the author mentions).
I'm sorry for this confusing post. This entire business of determining the threshold of abstraction for infringement seems highly subjective from all angles and I just got frustrated with the book and it's attempt to clearly characterize between an objective and a subjective test. I am having trouble distinguishing with such clarity.