Semantron 23 Summer 2023

Copyright law

adaptation [and]...other alterations of artistic work ’ . This case reiterates the abuse of copyright law and how the law is restraining creativity.

Judgements of cop yright infringement cases are mostly based on case law and the judge’s interpretation since jury trials are not available for copyright cases taking place in the IPEC and High Court. In the case Dean v. Cameron, Roger Dean claimed that the scenes in Avatar have infringed his copyright in fourteen artworks. 19

Figure 5: A scene in Avatar

Figure 4: An original artwork by Roger Dean

In Figure 4 and Figure 5, the composition and layout of the two pictures are more or less the same, including one horse-like object on the right-hand side of the picture while there are enemies behind it. The greatest difference between the two figures is the colour tone; figure 4 has a much warmer colour tone than figure 5. It can be clearly seen that there are quite a lot of similarities between the two pictures. However, in this case, the claim was dismissed by the court. The judge held that the plaintiff was not able to show the substantial similarities between the scenes in Avatar and the artwork. This raises the question, what exactly is ‘substantial part’? In the case , Peter Gibson LJ has stated that the test of substantiality ‘ depends not upon the proportion which the part taken bears to the whole but on whether the copy can be said to have appropriated the presentation and layout of the edition ’ . 20 In other words, the test is based on the qualitative amount of work taken instead of the quantitative amount of work reproduced. But the vagueness of the substantiality test gives courts considerable room for manoeuvre in making their judgements. covered by this law is so diverse. In the federal system of US government, states have their own laws judiciaries. It is not surprise, then, that the tests for ‘substantial similarities’ vary from state to state. 21 For example, the ‘ Extrinsic-Intrinsic test’ is used in the ninth circuit, the ‘More Discerning Observer test’ is used in the second circuit and the 19 Carlisle, S. (2014) ‘Judge says ‘ No ’ to Roger Dean’s Avatar Lawsuit: Should Have Said ‘ Yes ’ Instead?’ . Nova Southeastern University, 26 September. Available at: (Accessed: 12 January 2021). 20 (2001). Judgements - Newspaper Licensing Agency Ltd v. Marks and Spencer plc. Available at: (Accessed: 03 April 2022).

21 University of Michigan Library Research Guide. (2021) Substantial Similarity. Available at: (Accessed: 19 February 2022) .


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