The traditional understanding of copyright law is that the concept of “prior art” only applies to patents and that the term is irrelevant in determining whether a defendant has infringed the right. someone’s copyright. Patent law requires an invention to be novel and novel in order to qualify for protection. Prior art, which can broadly be described as any publicly available pre-existing knowledge in the world, is frequently used by defendants in litigation to argue that a plaintiff’s so-called invention should never have benefit from patent protection because the applicant’s invention was not new. .
In copyright, however, a work of authorship need not be new; it only needs a spark of creativity from the author to receive protection. For example, it doesn’t matter if someone’s photo of the Eiffel Tower looks like the countless similar images on the Internet; it just matters that the unauthorized copying did not take place. Nevertheless, in assessing what exactly is unique to the author and therefore protectable under copyright law, courts will filter out all unprotectable elements of a work. The United States Court of Appeals for the Ninth Circuit uses a two-part extrinsic-intrinsic test to determine whether a defendant has inadmissibly copied copyrighted material from a work. If a defendant copied only unprotected elements of a work, then the plaintiff has no claim.
Yet there is a growing trend in district courts to refer to “state of the art” in copyright cases when evaluating portions of a plaintiff’s work. which are protectable. In Johannsongs-Publishing v. Lovland, Johannsongs alleged that the song “You Raise Me Up”, written by defendants Rolf Lovland and Brendan Graham, was inadmissibly copied from the old Icelandic hit song “Söknuður”. In a motion for summary judgment at the district court level, defendants argued that the similarities between the songs were not sufficient to find infringement and were in fact derived from a public domain song and “several other prior art songs”.
Both parties submitted expert reports, but the district court found only one, from defendants’ expert, who properly screened out all unprotectable material, including songs from the prior art. Plaintiff’s Expert Reports had not conducted a prior art survey, so according to the district court, their comparison of the songs failed to “filter the elements of the non-protectable prior art, which is the basis of the extrinsic test”. Thus, the court granted the defendants’ motion for summary judgment and the plaintiff appealed. In November 2021, the Ninth Circuit issued a fairly short ruling on that appeal, finding that the district court properly excluded plaintiff’s expert reports because they “failed to filter out similarities attributable to the state. technique, as required by the extrinsic test”.
What does all of this mean for future copyright litigants?
Neither the District Court nor the Ninth Circuit explained what they meant by the term “prior art”. It may just be shorthand for referring to examples of other artistic works, and the intent of the courts was to perform a normal copyright infringement analysis. Or it could signal that courts are beginning to use the state of the art to determine whether a work deserves broad or narrow protection instead of turning to more traditional doctrines of unpredictability, such as the idea-expression distinction or the concept scenes to do.
The bottom line is that whether or not courts use the term “state of the art” when referring to other artistic works, it’s just semantics, litigants should make sure they search on the state of the art and be prepared to discuss how a work is or is not. t different from the rest.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.