Bruce E Boyden, ‘The Grapes of Roth’, 99 Washington Law Review 1093 (2024). In Sedlik v von Drachenberg, the jury had to decide whether a tattoo featuring Miles Davis was substantially similar to the photograph on which the tattoo was based. To do so, the court instructed the jury to exclude from consideration either work’s concept but to then to make ‘a holistic comparison that focuses on whether the works are substantially similar in the total concept and feel of the works’. How is a jury to exclude concepts from consideration only to then compare the works’ ‘total concept and feel’? In his article, Bruce Boyden persuasively explains how we got here and further argues that this is not the way to resolve questions of copyright infringement. One of the article’s many contributions is to spotlight why developing a ‘substantial similarity’ standard is complex because the issue bundles three distinct questions … (more)
[Michael W Carroll, JOTWELL, 7 July 2025]
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