Copyright Infringement and Poetry: When is a Red Wheelbarrow the Red Wheelbarrow?
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. 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.