William Patry writes about a recent U.S. Federal District Court decision that is “a masterpiece of analysis and witty writing” (Ricky Gervais Inspires Copyright Opinion). Patry quotes from the decision (citations omitted):
For example, presuming Shakespeare’s poetry was subject to copyright, an aspiring poet might purchase a collection of his sonnets and select one to serve as the inspiration for her own poem. She might select Sonnet 18 and attempt to emulate the poem’s depiction of unwavering beauty by borrowing his iambic pentameter and even a word or short phrase, fully intending to write a poem that will usurp the Bard’s virtual monopoly on romantic sonnets and win fame and fortune for herself in the process. The aspiring poet’s motives are of no moment so long as the final product is not substantially similar to the original.
In this case, the Court has already found that, like the aspiring poet, Harwood and Moore used SMS’s works to create ASP’s. Even if they smuggled copies of SMS’s programs and poured over them, redlining and rewriting, such “intentional dissimilarity” is permissible.
From, Situation Management Systems v. ASP Consulting Group, F.Supp.2d —-, 2008 WL 538808 (D.Mass.)(available here), Civil Action No. 06-11557-WGY.
What’s particularly interesting to me here is that this case would likely be decided differently in the UK (at the very least the analysis would be distinctly different).
The difference flows from the English courts’ decided lack of tolerance for situations where one author uses the work of another as a “short-cut” to creating new works. Take, for example, Elanco Products v. Mandops,  R.P.C. 213 (in the UK Court of Appeal), where the plaintiff’s patent on a chemical (a weedkilling herbicide) had expired, and the defendant was preparing to market a generic competitor. In so doing, the defendant copied the plaintiff’s instructions on how to apply the chemical. According to the Court, these materials were “so similar [to the plaintiff’s] as to be virtually identical, even to the point of including the same diagrammatic representation.” The Court continued:
On complaint being made, the respondents [agreed to] withdraw the leaflet . . . entirely. They were asked to submit a draft of the replacement, which they did on 21 April of this year. The appellants observed that whilst the format and language were now quite different, the data was virtually the same, and so they objected to this also . . .. (emphasis added)
This is indicative of how English courts view copyright not simply as protecting bare expression itself, but also the process by which that expression came into existence and even the data underlying it (where that data came into existence based on someone’s efforts). The Court’s conclusion on the potential for liability on the defendant’s part is instructive here:
It may well be that if the respondents had in fact at the start simply looked at the available information, including what appears in ACAS and, I think, what appears in the appellants’ own literature, and from that decided what they would put in their literature and how they would express it, the appellants would at least have had considerable difficulty in bringing home any charge of infringement, even, having regard to the evidence, if the result had been extremely similar and the selection of items had been the same. But they chose, on the evidence as it stands at the moment, to proceed by making a simple and, as I think unauthorised, copy, and then they proceeded to revise it.
It may well be that the result produced that way is an infringement.
In the U.S. case, as the allegedly infringing work has not appropriated the expression of the work allegedly infringed, even though that lack of similarity is intentional on the part of the alleged copier, there is no infringement. It is, it seems, all about the text in the US. In the UK, a text arrived at through one process may be non-infringing, whereas if that same text is arrived at through a different process, it may be infringing. It is, it seems, very much about the process in the UK.
There are other cases that provide further examples of this English “skill and labour appropriation” line of reasoning. One involves a fiction writer’s use of a “historical” book as the basis for a novel, Ravenscroft v Herbert  RPC 193). In Ravenscroft, Herbert was accused of copying a novel entitled “The Spear” from a “historical” account in another book called “The Spear of Destiny.” The court said:
Copyright protects the skill and labour employed by the plaintiff in production of his work. That skill and labour embraces not only language originated and used by the plaintiff, but also such skill and labour as he has employed in selection and compilation. The principles are clear from the cases.
That is, it is not just the expression that is protected, but the effort that was required to reach the point of expression. We might even go so far as to conclude that “intentional dissimilarity” may be a basis for infringement in the UK; indeed, given Elanco Products and Ravenscroft, making your work “intentionally dissimilar” in the UK may help a plaintiff prove an infringement case.
There is some question, given the more recent Court of Appeal decision involving The DaVinci Code (Baigent & Anor v The Random House Group Ltd  EWCA Civ 247), just how far this notion might be pushed. In Baigent & Anor, DaVinci Code author Dan Brown was found not to have infringed copyright in using an earlier “historical” work entitled “The Holy Blood and the Holy Grail” in preparing to and writing The DaVinci Code, but the decision flowed from the plaintiff’s claim that the alleged “non-textual” copying was of a “central theme” in the earlier work, and the Court’s conclusion that the central theme was created in an attempt to base a copyright infringement case on it. One judge stated:
It remains true that a copyright work can be copied and substantially so in other than discretely linguistic ways, as Lord Hoffmann observed at para 24 of Designers’ Guild. That is what, in one sense, occurred in Ravenscroft v. Herbert and New English Library Limited  RPC 193, but in that case there was wholesale pillaging of not only theme (and “a single theme” at that, see page 198, line 25) but also incident and language (see at 200/203), which on any view has not occurred here.
The phrase, “in other than discretely linguistic ways” seems to leave the door open for the kinds of claims that were unsuccessful in the U.S. Situation Management case. Note that, as pointed out by the good folks over at IMPACT when the Court of Appeal decided the Baigent & Anor case, the current UK test is drawn from Designer Guild Ltd. v. Russell Williams,  UKHL 58;  1 All ER 700;  1 WLR 2416:
The House of Lords said that where the copying had been a copying with modifications, the phrase to describe this sort of copying is “altered copying” (per Laddie, Prescott & Vitoria, The Modern Law of Copyright and Designs (1995, 2nd Edition)).
When dealing with such cases, the House of Lords laid down that a “useful test” to determine whether an altered copy constituted an infringement was, again, proposed in Laddie, Prescott & Vitoria: “whether the infringer incorporated a substantial part of the independent skill, labour etc contributed by the original author in creating the copyright work …”. This test is based on an underlying principle of copyright law, that a copier was not at liberty to appropriate the benefit of another’s skill and labour.
Given the continuing references to not only appropriation of expression but to appropriation of “skill and labour” in the copyright context in the UK, I’m pretty sure the notion of “intentional dissimilarity”isn’t the law anywhere ’round these parts, and doesn’t have very good chance of being adopted in England anytime soon.