Comparing Apples to Applejacks: Cognitive Science Concepts of Similarity Judgment and Derivative Works

It seems quintessentially American that in the year of the United States bicentennial, one maker of a plastic toy Uncle Sam mechanical bank sued another to invalidate a copyright. In determining the validity of the appellant's copyright, the court compared the plastic bank to a similar cast-iron Uncle Sam bank that had existed in the public domain since the 1880s. The appellant claimed a myriad of differences between his copyrighted bank and that of the original, including a change in the material the bank was made out of, the shape of the carpetbag Uncle Sam was holding, a shortened figure and narrowed base, a change in the texture of many of the bank's elements, the addition of leaves instead of arrows in the talons of an eagle on the bank and alterations to Uncle Sam's face, hairline, hat, dress, shirt collar and bow tie. While noting that the long list of changes made the plastic bank more than a "faithful reproduction," the court found the alterations to be "merely trivial" and invalidated the copyright for lack of originality. But if the plastic bank was not a simple reproduction, and not sufficiently original, what was it? What changes, if not to size, substance, texture, art, and shape, could the maker possibly have made that would have distinguished it sufficiently from its source material?The questions generated by this landmark case highlight how, perhaps more than any other area of law, copyright law is grounded in the subjectivities of human perception. This is especially true in regard to derivative works, where courts and legislatures have long struggled to create laws and tests that outline qualities and categories for determining similarity between original and derivative material. But the question of how to create reliable strictures to judge something as subjective as similarity is not unique to copyright law. At a more theoretical level, cognitive scientists have struggled with the same questions for decades, creating various scientific and theoretical models to explain how humans prioritize, categorize and judge features to determine similarity between two or more objects.This article will first look at copyright's derivative works right and the factor of transformation under the fair use test, examining historical issues in both statute and relevant case law. A brief history and summary of cognitive science and psychology's ideas about human perception of generalization, similarity and categorization will be reviewed in Parts I and II. Part III will then compare the cognitive science findings on how people assess similarity to the similarity tests used by the courts. Further, it will propose that cognitive science reveals that the courts are highly susceptible to a number of potential biases and framing heuristics in their tests for judging infringement, derivative works and fair use. Using these lessons and analysis, this article will suggest possible improvements to judicial frameworks, and future applications for cognitive science in copyright law, and in the meantime, ways in which both plaintiffs' and defendants' copyright attorneys might use such biases to their advantage.