Abstract: Shortly after Roth Greeting Cards was decided in 1970, its offhand reference to the “total concept and feel” of the cards at issue became the dominant standard in copyright law for determining whether two works were substantially similar. That is a remarkable achievement for a phrase that, in the words of the influential Nimmer treatise, “threatens to subvert the very essence of copyright.” It nevertheless had enormous appeal for federal judges, and the reason extends well beyond copyright law. “Total concept and feel” appeared at a critical juncture for the federal judiciary, as an older model of decision-making, based on discretion and reason, yielded to a more formalized process. For a time, the phrase allowed judges in copyright cases to continue using their discretion and aesthetic judgment in a legal world that had grown cold to both of those things.
The history of “total concept and feel” in copyright law thus opens a window on an important but underappreciated transition point in the law, one that occurred in the 1960s with reverberations that continue to the present day. The history related here shows how judges first attempted to pay tribute to formalism with capacious doctrine, a maneuver that allowed them to retain decision-making power in infringement cases at a time when jury trials were rare and summary judgment standards only loosely observed. But “total concept and feel” provided only fleeting respite from the rise of formalism. The same forces that pushed judges to adopt a new definition of substantial similarity eventually took that decision away from them entirely, placing it instead with juries, with anarchic results.
This history demonstrates two things. First, while copyright scholars tend to view the development of infringement doctrine as an unbroken chain of events, in fact copyright precedents come from three distinct eras, each with its own method of decision-making. The ready availability of judicial discretion in earlier eras can no longer be presumed. But second, the use of informed discretion in resolving copyright disputes is not so easily forgone. Even now, after discretion became anathema at trial and then at summary judgment, it is nevertheless reappearing at the pleadings stage as courts increasingly grant motions to dismiss. This development suggests that it would be better to end the “total concept and feel” maneuver and give judges and juries the information they need to make better decisions.
