Study On Substantial Similarity Determination Of Art Works

Art works are a major classification of works in copyright law,and its substantial similarity judgment is also a special problem in the determination of works’ similarity.In theory,the traditional view holds that it is difficult to distinguish the constituent elements of art works.For the dichotomy of thought and expression is in conflict with the art theory,the substantial similarity judgment of art works can only be concluded by applying the total concept and feeling test method.In practice,it is also very difficult to judge the substantial similarity of works of art,and the total concept and feeling test method for this type of works is still difficult to achieve reasonable results.Therefore,we need to continue to explore more effective determination methods.In China,with the development of fine arts,the number of related infringement cases has increased significantly,and the requirements for similarity determination of works of art have also increased.However,the current theoretical and judicial environment fails to provide a better environment for creation.There are few studies on the factors to consider the judgment of the substantial similarity of art works,and it is difficult to regulate the misappropriation of art works.Through the empirical analysis of relevant cases in the last five years,we can see that there are much problems,the description of judgment is lack of order,the application of determination methods is confusing,and the subject of judgment is always unclear.We cannot rely on public opinion alone to put pressure on plagiarism,that is far from enough.Therefore,it is urgent to optimize the substantial similarity judgment of art works and balance the interests of related subjects.To discuss the judgment of the similarity of works of art and to optimize the judgment of related cases,it is necessary to clarify the subjects and methods,and know about the consideration factors for the judgment of substantive similarity of art works.The structure theory of art works can help us grasp the substantive elements in practical cases and make judgments more rational.In fact,one of the reasons why the judgment is confused and weak is that we lack an understanding of the judgment elements of art works.The study on the derivative work right of art works can help us better understand the relationship between substantial similarity and originality,so as to better sort out the judgment thoughts and get rid of the misunderstanding of similarity judgment.In addition,the fair use provisions are used to distinguish between the act of re-creation and the act of infringement,so as to avoid making the new creative method of misappropriation of art an excuse for infringement.The United States has a wealth of experience in the determination of similarities in works.In the determination of the substantial similarity of works of art,the United States has a very deep research on the total concept and feel test,and the extrinsicintrinsic test method,which has brought great inspiration to our country.The discussion of the judging subject reveals that the perception of artistic value by different subjects is the fundamental reason that affects the judging result.The theoretical and empirical investigation of the substantial similarity judging methods also shows that there is no absolute difference between these judging methods.On the contrary,they are interconnected.In addition,the fair use system framed the problem of appropriation of fine art works within the existing rules of copyright law,which better resolved this conflict.The experience of judges in Japan suggests that the principle of quality and quantity of similar judgments always needs to be applied,it is found that there is still some discussion space for the observation subject.In addition,the United States and Germany have framed the problem of misappropriation of fine art works in the existing rules of copyright law,and solved the conflict through the system of transformational use and free use,which has protected the freedom of art and brought great inspiration to China.By analyzing and drawing on the experience of other countries,suggestions for improving the substantial similarity of China’s art works are put forward in three aspects: system optimization,idea construction and method improvement.Re-examine the "thought" and "expression","content" and "form" of art works,and include "parody" into the application of the fair use system.Grasp the subjects and methods that need to be considered in the judgment of the substantial similarity of art works and use structural analysis as an important tool in determining similarity.Judging similar parts using three principles,namely the principle of integrity,the principle of quantity and the principle of quality.In the application of the similarity judgment method,it should be determined based on the characteristics of the works rather than the type of the works,and the conclusion can be drawn more flexibly through the coordinated application of the judgment methods.Finally,special observation subjects can be used in due course.