Substantial Similarity’s Silent Death

Copyright litigation involving hit songs like Robin Thicke’s “Blurred Lines,” Justin Bieber and Usher’s “Somebody to Love,” and Led Zeppelin’s “Stairway to Heaven” caused many in the music industry to vex over the line between homage and infringement. When are the two works too similar? To many courts and scholars, substantial similarity is “bizarre,” “ad hoc,” and “a virtual black hole in copyright jurisprudence.” Every creative work borrows some inspiration from other works, whether copyrighted or not. Judging when defendants appropriated too much is an inherently opaque and subjective enterprise, but unraveling its mysteries is critical for the flourishing of diverse, creative ecosystems like architecture, literature, movies, and software. The scholarly debate has focused on doctrinal tests and litigation venues without accounting for factors actually impacting case outcomes and those that do not. Unaddressed, plaintiffs will continue to face abysmal odds without really knowing why. This Article reveals potentially malignant features in copyright law that may inhibit the growth of creativity and technology, and other features that are conventionally thought to impact case outcomes but are surprisingly irrelevant. This Article’s most important finding is substantial similarity’s silent death through pretrial motions and the prevalence of non-rival defendants. This Article also uncovers the irrelevance of willful infringement and the nature of the copyrighted works at issue to case outcomes. Beyond copyright law, this Article underscores the consequences of shunting jury trials, affirms how empirical research realigns theoretical work to real-world outcomes, and demonstrates how cross-fertilization within copyright doctrines and beyond copyright law is critical to addressing seemingly intractable doctrinal puzzles like substantial similarity