Skip to main content
PRINT EDITION

The Grapes of Roth

By December 1, 2024January 15th, 2025No Comments

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.

Download the Full Article

Other Articles from WLR Print Edition

March 1, 2025 in PRINT EDITION

What’s Important to Write About? A Century of Washington Law Review Topics

Abstract: This Article examines the topics of all lead articles in Washington Law Review during its past ninety-eight years of publication. The analysis illustrates the changing interests of legal academics,…
Read More
March 1, 2025 in PRINT EDITION

Tenant Rights Deserve Consumer Protections: The Case for Overturning State v. Schwab

Abstract: Tenancy is a precarious housing arrangement—tenants do not own their homes yet depend on housing stability as a foundation for engaging in almost all aspects of life. For more…
Read More
March 1, 2025 in PRINT EDITION

Washington’s Implementation of Legalized Cannabis: A Model for Other States and the Federal Government

Abstract: This Article examines the process and outcomes of cannabis legalization in Washington State, offering insights for other states and potential federal legalization schemes. It begins with an overview of…
Read More