Copyright does not protect facts or ideas, but only an author's original expression. Often, though, it is difficult to distill protected expression from unprotected ideas or facts that reside in the public domain. Copyright protection for poetry is particularly problematic because a poem's ideas are often intertwined with a poem's sounds, shape, and images. It is often not only difficult to extract ideas from a poem's surface, but once ideas are "discovered," it may even be difficult to articulate exactly what these main ideas or themes are. William Carlos Williams' poem, The Red Wheelbarrow, one of the most famous twentieth century poems, provides a good example of the problems inherent in distinguishing idea and expression in poetry. Williams' deceptively simple poem exemplifies the melding of idea and expression into syntax and form so that the poem itself becomes the meaning. In The Red Wheelbarrow, it is impossible to separate Williams' "idea" of a red wheelbarrow from the context of his poem's words, line breaks, and even his distribution of white space on the page, all of which describe and give meaning to Williams' vision.
Copyright currently protects poetry just like it protects any other kind of writing or work of authorship. Poetry, therefore, is subject to the same minimal standards for originality that are used for other written works, and the same tests determine whether copyright infringement has occurred. The low threshold of originality that determines if a work is eligible for copyright embodies the notion that judges should not make aesthetic determinations of what is or is not art. This low standard serves poetry with the same sweeping graciousness that it serves other genres, ensuring that no one kind or style of poetry receives special treatment in terms of protectibility. However, the tests for copyright infringement that courts use are not adequate in deducing if one poem is impermissibly similar to another.
In an infringement action, once copying has been established, improper appropriation or infringement is determined by a substantial similarity test that compares the two works in question.1 Courts currently apply a variety of substantial similarity tests that attempt to separate the copyrightable elements in a work from the non-copyrightable elements and then determine if the copier has taken a substantial amount of copyrightable elements. Many of the tests designed to determine substantial similarity between works have been criticized for their vague standards and unpredictable applications. These tests become even more problematic when applied to poetry because poetry communicates its ideas differently than genres such as fiction or non-fiction.
Poetry is a genre in which language is carefully manipulated into lines, stanzas, and rhythms, all of which add meaning to a poem. Despite the particular expressive means available in different genres, courts currently use the same tests for substantial similarity for different types of literary works. Copyright infringement actions are usually determined by examining the substantial similarity between two written works by comparing aspects like plot, character, and descriptions. Courts applying copyright law need to recognize how poetry operates as a distinct genre and protect it based on all the elements of original expression that are available for poets to use.
In this paper, I will first summarize the background principles and purposes of copyright. Then, in Part II, I will explain the tests for substantial similarity that are currently used by courts to determine misappropriation. Part III of my paper will outline the ways poetry can be expressive, focusing particularly on Williams' The Red Wheelbarrow as an example. In Part IV, using my discussion of poetry's expressive elements as a springboard, I will show how the current tests for improper appropriation are not suited for poetry. In Part V of my paper, I will argue for a new improper appropriation test for poetry that compares not only two poems' words but also the words' arrangement and layout on the page. I will explain how this ''expressive elements test" works and how its application would better serve poetry within the purposes of copyright.
Copyright Infringement and Poetry: When is a Red Wheelbarrow THE RED WHEELBARROW?,
58 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol58/iss3/13