Property and Property law
Paraphrasing of copyrighted material may reduce the probability that a court will find that copyright has been infringed; however, there have been cases where a paraphrase has been found to infringe on a prior work's copyright.[better source needed]
In most countries that have national copyright laws, copyright applies to the original expression in a work rather than to the meanings or ideas being expressed. Whether a paraphrase is an infringement of expression, or a permissible restatement of an idea, is not a binary question but a matter of degree. Copyright law in common law countries tries to avoid theoretical discussion of the nature of ideas and expression such as this, taking a more pragmatic view of what is called the idea/expression dichotomy.
The acceptable degree of difference between a prior work and a paraphrase depends on a variety of factors and ultimately depends on the judgement of the court in each individual case.
Copyright protection in Britain dates back to the 1556 Charter of the Worshipful Company of Stationers and Newspaper Makers. The Licensing of the Press Act 1662 gave publishers exclusive printing rights, but did not give any rights to authors. Parliament failed to renew the act in 1694, primarily to remove monopoly and encourage a free press. The Statute of Anne in 1710 prescribed a copyright term of fourteen years, and let the author renew for another fourteen years, after which the work went into the public domain. Over the years, additional acts and case law steadily refined the definitions of what could be protected, including derivative works, and the degree of protection given.
An early example of the concept of paraphrasing as a copyright issue arose with Johann Heinrich Zedler's application in 1730 for copyright protection in Saxony for his Grosses vollständiges Universal-Lexicon, one of the first encyclopedias. The publisher of a rival General Historical Lexicon said that Zedler's Universal Lexicon would not differ in content from this and other existing lexicons apart from paraphrasing. On 16 October 1730, the Upper Consistory court in Dresden rejected Zedler's request, and warned that he would be subject to confiscation and a fine if he reproduced any material from the General Historical Lexicon in his Universal Lexicon.
The Soviet Union's Copyright Act of 1925 in essence said that a work created by a minimal paraphrase of an existing text could be considered a new work eligible for copyright. By 1991, the Copyright law of the Soviet Union had evolved to give much more protection to the author. Free use, similar to the English common law concept of fair use, was only allowed if it did not infringe upon the normal exploitation of the work or the legitimate interests of the author.
United States copyright law protects original expressions but not facts, methods, discoveries, or other ideas being expressed, a doctrine known as the idea–expression distinction. Despite making this distinction, verbatim copying is not always required for copyright infringement, as paraphrasing is also prohibited in certain circumstances.
US copyright law originates in the Copyright Clause (Article I, Section 8, Clause 8) of the Constitution, and has been the subject of several federal statutes, most recently the Copyright Act of 1976. The basic two-part test for copyright infringement under the 1976 Act, described by the US Supreme Court in Feist Publications, Inc., v. Rural Telephone Service Co., is (1) whether there is a valid copyright, and (2) whether there has been improper copying of the copyrighted work. The second prong also has a two-part test, first articulated in the Second Circuit case Arnstein v. Porter: (a) whether copying occurred (as oppose to independent creation), and (b) whether the copying amounts to an "improper appropriation", meaning that enough of the author's protected expression (and not unprotected ideas) was copied to give rise to a "substantial similarity" between the original work and the putative copy. Even if all prongs are met, there are fair use defenses that may defeat a claim of copyright infringement.
Beyond these basics, US copyright law is complex, confusing, and inconsistent, with a variety of tests employed by courts to determine when copyright has been infringed, including by paraphrasing. There is no single rule that defines when two works are substantially similar, or when paraphrasing is so "close" as to constitute infringement of a copyrighted expression as opposed to being a different way of expressing the same idea. There is a circuit split among the twelve federal appeals courts on substantial similarity analysis, with each circuit employing overlapping but unique approaches. Decisions are, by necessity, made on a case-by-case basis, with few universally-applicable principles.
When examining claims of copyright infringement, including by paraphrasing, US copyright law distinguishes between works of fiction (e.g., a novel) and works of fact (e.g, a history book or a set of instructions). Copyright protection for factual works is narrow, covering the author's original expressions, but not the facts or theories being expressed. In order to infringe, the copy must be "verbatim reproduction or very close paraphrasing".
Different courts adopt different approaches to analyzing whether paraphrasing in factual works constitutes infringement. Some courts have held that some factual works, particularly functional works such as instructions, lack the creativity required to meet the threshold of originality, and thus there can be no valid copyright under the first Feist prong. Other courts follow the "merger doctrine". Under the merger doctrine, if there are only a limited number of ways in which an idea can be expressed, the expression is said to have "merged" with the idea, and thus there can be no valid copyright under the 1976 Act. Some courts employ "thin copyright", finding that there is a valid copyright of factual works, but that it is afforded only limited protection against "virtual identicality" or "bodily appropriation of copyrighted expression", and thus permitting paraphrasing that might be prohibited in other circumstances. Finally, some courts find that all prongs of the Feist and Arnstein tests are met, but that the copying is nevertheless permitted under the fair use doctrine. Fair use analysis includes multiple factors, one of which is the "nature of the copyright work," and some courts find that factual works provide greater leeway for fair use than fictional works.
Nonfiction literary works, such as history books, newspaper articles, and biographies, are treated as factual works with similarly narrow copyright protection. An author's unique expressions are protected, but not the facts and theories themselves. Even the selection and arrangement of facts may not be protectable. For example, an author may arrange a series of facts to support a theory for why a historical event occurred, but if the author could prevent others from using the same selection and arrangement of facts, the author would have an effective monopoly on the theory itself, which would run counter to US copyright law's prohibition on copyrighting ideas.
For fictional works, more than "very close paraphrasing" is protected. US copyright law protects against paraphrasing a story by, for example, copying a detailed plot sequence but using different language for the dialogue. However, under the doctrine of "scènes à faire", it does not protect more general patterns, such as story themes and character prototypes. Some courts will distinguish between "literal" similarities, such as verbatim duplication or paraphrasing, and "nonliteral similarities", such as the details of a novel's plot, characters, or settings. In his 2008 book Copyright's Paradox, discussing the conflict between protecting copyright and protecting free speech, Neil Netanel says, "Yeats [borrowed] from Shelley; Kafka from Kleist and Dickens; Joyce from Homer; and T.S. Eliot from Shakespeare, Whitman and Baudelaire, all in ways that would infringe today's bloated copyright."
In Nutt v. National Institute Inc. (1929), Nutt was prohibited from delivering in public and for profit lectures that were similar to lectures whose copyright was held by the National Institute for the Improvement of Memory. The U.S. Court of Appeals for the Second Circuit in this case found that the protected expression is more than the literal words but also includes the "association, presentation, and combination of the ideas and thought which go to make up the [author's] literary composition." The court said "The infringement need not be a complete or exact copy. Paraphrasing or copying with evasion is an infringement, even though there may be little or no conceivable identity between the two."
Wainwright Securities was engaged in preparing in-depth analyses of public companies, and selling them to major investors. The Wall Street Transcript Corporation, publisher of the Transcript magazine, began to publish abstracts of the Wainwright reports. In Wainwright Securities v. Wall Street Transcript Corp (1977) the U.S. Court of Appeals for the Second Circuit noted that "news events" cannot be copyrighted, but found that "the Transcript appropriated almost verbatim the most creative and original aspects of the reports, the financial analyses and predictions." The court said, "What is protected is the manner of expression, the author's analysis or interpretation of events, the way he structures his material and marshals facts, his choice of words and the emphasis he gives to particular developments." An example of very close paraphrasing in this case was:
The U.S. Court of Appeals for the Second Circuit in Salinger v. Random House (1987) found that an unauthorized biography by Ian Hamilton had infringed copyright with paraphrases of passages from unpublished letters written by the subject, the well-known novelist J. D. Salinger. As an example, the court cited:
Despite differences in wording and sentence structure, the court found this to be a close paraphrase of a highly original expression. In this case, the close paraphrasing was considered to contribute to the "amount and substantiality" of the material that had been copied - that is, paraphrasing is a form of copying. The court also found that Hamilton's practice of including phrases like "Salinger says," or "he said" within his paraphrase could give readers of the biography the false impression that they had read Salinger's own words. They might therefore decide not to buy a collection of the original letters. The court found that this meant there would be a financial impact. The court barred publication.
The case of Wright v. Warner Books (1991) was superficially similar to Salinger. Margaret Walker wrote an unauthorized biography of Richard Wright, best known for his books Native Son and Black Boy, in which she made "sparing use" of excerpts from the subject's unpublished letters and journals. Ellen Wright, Richard Wright's widow, sued the author and Warner Books, the publisher. In one example, the book paraphrased as follows from an unpublished letter that Wright had written:
Despite the apparent similarity, the U.S. Court of Appeals for the Second Circuit ruled that copyright had not been infringed. The paraphrasing was just "straightforward and factual reportage" of the "most basic and banal factual matter."
Publishers may formally allow limited quotation but prohibit paraphrasing, since they do not want readers to mistake the paraphrase for the original work. In this case they would prohibit alteration of the work in their permission agreement. Although paraphrasing may be considered fair use under copyright law it may be considered breach of contract when the author of the paraphrase has implicitly or explicitly accepted a permission agreement.
Judge Richard Posner has argued in his blog in favor of laws that require online sites to obtain permission from the copyright holder before linking to or paraphrasing copyrighted materials from newspapers. His concern is that existing laws based on fair use may not provide sufficient protection to the newspapers, who are paying for expensive news collection while the websites essentially get a free ride. Without greater protection, Judge Posner considers that the result of widespread paraphrasing of newspapers on internet sites could be a drastic reduction in the number of news-gathering sources.
Paraphrase may apply to music as well as to writing. It was commonplace for Baroque, Classical and Romantic composers to create variations on each other's work without permission. This would not be allowed today.