Copyright's Framing Problem

Copyright and Trademark and Intellectual Property

Article Snapshot


Margot Kaminski and Guy A. Rub


UCLA Law Review, Vol. 64, 2017 (forthcoming)


Many copyrighted works can be divided into smaller parts. A court’s decision to frame a copyright dispute by considering the whole work often yields a different outcome than considering only a part. Framing decisions are inconsistent. But taking a unified approach to framing makes little sense.

Policy Relevance

Courts should consider many factors in deciding whether to consider a work as a whole, or divide it into parts.

Main Points

  • Complex copyrighted works like books, newspapers, CDs, or songs, can be broken down into parts, such as chapters, articles, songs, or notes.
  • The Copyright Act does not define what should be considered a “work;” courts sometimes consider the work as a whole, “zooming out,” or as a collection of small parts, “zooming in.”
  • Framing is important in cases involving infringement, fair use, damages, and others:
    • Infringement depends on “substantial similarity;” some courts have decided that similarity of small parts is enough, even if the work has a whole is different.
    • In other infringement cases, overall similarity is enough, even if parts are very different.
  • Most courts do not provide good reasons for their framing choices; overall, framing choices are inconsistent.
  • Courts that discuss framing often consider market factors, asking if the small part of a work could be purchased and enjoyed by consumers alone.
    • Digital technology fractures markets; tiny pieces of works are now sold.
    • Counting each piece as a “work” multiplies damages awarded from thousands to millions of dollars, an absurd result.
    • If one may only use a work by licensing, other’s creativity might be impeded by transaction costs.
  • Copyright law should not provide a unified framing test, or unified definition of the “work.”
  • Courts should consider many factors in framing decisions, balancing the need to protect author’s incentives to create new works with other’s need to access and re-use the work.


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