Research On Judgment Of Substantial Similarity Of Art Works

In recent years,there are more and more infringement cases related to the similarity of art works.Similar to other types of works,most judges will use the method of "contact+substantial similarity" to judge whether the art works involved are infringing.Substantial similarity developed from the judicial practice in the United States,and was later introduced into China.However,neither China nor other countries have reached a consensus on the identification rules of substantive similarity,China’s copyright law does not provide for substantive similarity,and a set of uniform standards has not been formed in judicial practice.Judges can only exercise their discretion by their own experience,which makes the judgment of substantive similarity more complicated and difficult.Therefore,it is very important for both theory and practice to clarify the thinking of judging infringement of art works.This paper analyzes the legal essence of substantive similarity and its applicable premise,enumerates the methods commonly used in judicial practice to judge the substantive similarity of art works,and summarizes the problems existing in the application of judicial practice in China.Through a detailed analysis of various aspects that may affect the substantive similarity of art works,this paper puts forward a specific way to judge the substantive similarity of art works:When judging whether the two art works involved are substantially similar,we must first judge whether the works or parts of the works that the plaintiff requests to be protected are original.After that,using the total concept and feel test and the abstraction-filteration-comparison test,the judge will judge whether the two works can arouse the readers’ same or similar appreciation experience from the perspective of ordinary observers,find the similarities between the two works,and judge whether the similar feeling is caused by the similarity of thoughts or expressions.After that,the unprotected contents such as ideas and public domain are excluded,and the rest are compared.In comparison,it is not simply to separate the elements of art works,but to put the elements into the whole for comprehensive judgment.It is necessary to compare the whole picture as well as the local details.After comparison,we should judge the "quality" and "quantity" of similar elements in the original works.