page_title: Paraphrasing of copyrighted material
section_title: Comparison approaches
hierarchical_section_title: Paraphrasing of copyrighted material / Comparison approaches
caption_attribution_description: Learned Hand (1872-1961)
context_page_description: Paraphrasing of copyrighted material may reduce the probability that a court will find that copyright has been infringed; however, there have been many cases where a paraphrase that uses quite different words and sentence structure has been found to infringe on a prior work's copyright.
  The acceptable degree of difference between a prior work and a paraphrase depends on a variety of factors and ultimately depends on the judgement of the court in each individual case.
context_section_description: A paraphrase is a restatement of the meaning of a text or passage using other words.  Equivalent concepts apply to images or music.
  In most countries, copyright applies to the original expression in a work rather than to the meanings or ideas being expressed.
  A loose paraphrase of a portion of a work may therefore be published without violating copyright.
  If the paraphrase is so different that the expression in the derivative work has no similarity to that of the prior work, there is no infringement. 
  In See v. Durang (1983) the United States Court of Appeals for the Ninth Circuit found "Copying deleted or so disguised as to be unrecognizable is not copying."
  But courts have struggled to find a clear method of comparing a paraphrase or derivative to a prior work to determine whether the copyright in the original expression has been infringed.
  Philosophically, there is disagreement about the distinction between thought and language.
  In the past it was often thought that the two could not be separated, and so a paraphrase could never exactly reproduce a thought expressed in different words.  
  At the opposite extreme is the view that concepts and language are completely independent, so there is always a range of ways in which a concept can be expressed.
  Copyright law in common law countries tries to avoid theoretical discussion of the nature of ideas and expression such as this, taking a more pragmatic view of what is called the idea/expression dichotomy.
  In Nichols v. Universal Pictures Corporation (1930), Judge Learned Hand of the United States Court of Appeals for the Second Circuit gave an explanation of the dichotomy that has often been cited by courts hearing copyright cases, and that illustrates the inherent subjectivity of any decision.
  He said:
  Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out.  The last may perhaps be no more than the most general statement of what the play is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his "ideas," to which, apart from their expression, his property is never extended ... Nobody has ever been able to fix that boundary, and nobody ever can.
  The plaintiff in a copyright case must show that there is "substantial similarity" between the alleged copy and the prior work. 
  In Roth Greeting Cards v. United Card Co (1970) the U.S. Court of Appeals for the Ninth Circuit introduced the concept of "total concept and feel", holding that a work could be made up of elements that could not be copyrighted, but that the total concept and feel could be subject to copyright, and would be considered to be infringed if a normal reasonable person would consider that a disputed work was a copy of a prior work.
  This concept has been used in later cases such as Reyher v. Children's Television Workshop (1976), where two works derived from the same folk tale had similar plots.
  The U.S. Court of Appeals for the Second Circuit found that there had not been copying, since the different versions were very different in style and in detail, saying "the essence of infringement lies in taking not a general theme but its particular expression through similarities of treatment, details, scenes, events and characterization."
  The U.S. Court of Appeals for the Ninth Circuit in Sid & Marty Krofft Television Productions Inc. v. McDonald's Corp. (1977) refined the concept by establishing a two-stage comparison.
  An extrinsic test would determine similarity of general ideas, while an intrinsic test would compare the particular expressions used.
  Extrinsic similarity means that two works are substantially similar in their general ideas, which can be determined objectively by an expert.
  Intrinsic similarity means they are substantially similar in their forms of expression, and this is the more subjective test.
  The second test should be made by an "ordinary reasonable 
caption: Judge Learned Hand gave a seminal description of the idea/expression dichotomy in his 1930 judgement on Nichols v. Universal Pictures Corporation.
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