How can copyright infringement be distinguished from inspiration? Experts share with Espie Angelica A. de Leon examples and legal nuances, examining the idea-expression dichotomy, artistic originality and ongoing challenges in protecting creative works.

Had William Shakespeare been alive in the 1950s and filed a copyright infringement lawsuit against the producers of the musical West Side Story, which opened on Broadway in 1957, would he have won the case?  

West Side Story, which was eventually made into a movie starring Natalie Wood, had similarities with Shakespeare’s tragic play Romeo and Juliet. Both stories featured two feuding parties, star-crossed lovers from these rival groups and tragic consequences that stemmed from hatred. Character functions were replicated: Aside from Romeo and Juliet transforming into Tony and Maria in West Side Story, there was also the duo of Mercutio and Tybalt who were embodied in the characters of Riff and Bernardo in the musical. 

However, the elements that were replicated were mere ideas. No expression from Shakespeare’s play was reproduced. Copyright laws do not protect the idea itself; rather, they protect the expression of that idea. Expression comes in different forms, such as text, music, visuals and others. Therefore, the creators of West Side Story cannot be held liable for copyright infringement; they were merely inspired by the theme of Romeo and Juliet. So no, the Bard of Avon would not have won the case. 

Let’s delve deeper into the copyright infringement versus product of inspiration debate. The conversation runs mostly in the arts and culture realm. Some defendants in lawsuits argue that they merely took inspiration from the creative work that was said to be copied. Hence, their piece of work was just a product of inspiration. So how can copyright infringement be distinguished from inspiration? 

Idea versus expression 

“Distinguishing between inspiration and copyright infringement requires a careful, case-by-case analysis. There’s no simple formula, and courts often rely on a combination of legal principles and subjective judgment,” said Rohan Swarup, an associate partner at Singh & Singh in New Delhi. 

Let’s begin with an explanation of the term “inspiration” or “product of inspiration.” When a party to a case says the film, song or novel inspired him to create his own piece of work, what does he mean? 

“Inspiration often involves taking an idea, theme, concept or style from another work and creating something new and original based on that general influence,” Swarup answered, adding that inspiration is a vital part of the artist’s creative process. 

He cited an example: “A musician is inspired by the blues genre and incorporates common blues scales and chord progressions into their own original song with a unique melody, rhythm and lyrics. The underlying blues elements are not exclusively owned, and the new song’s original elements would likely be seen as inspiration.” 

“An inspiration is often considered to be the spark or an idea for creation. It could be a scenery, a muse, a mood – something which stimulates or influences,” added George Hwang, director of George Hwang in Singapore. “In the artistic world, it is usually experiential and often spontaneous. If an original work, be it art, music, literature or film, spurs the creation of a derivative work, and what is taken is merely an idea or concept, but not a specific expression, there is no infringement.” 

He mentioned that inspiration itself is not a legally defined concept in Singapore’s Copyright Act 2021 and in most copyright frameworks.  

On the other hand, copyright infringement occurs when the specific expression of the idea is copied substantially without permission from the copyright holder.  

Take a filmmaker who recreates several key scenes, dialogue and character arcs from another movie for his own film without permission. “This copying of the specific expression of the movie would likely be infringement,” Swarup pointed out. 

Note that copyright protection only extends to original works. If the copied elements are not at all original to that piece of artistic work, then there is no violation of copyright. Common phrases, generic design elements and standard musical progressions, such as the example given by Swarup above, are elements that are not original and therefore not protectable by copyright.  

A more specific case in point is Led Zeppelin’s victory in the copyright infringement lawsuit lodged by the estate of singer-songwriter Randy Wolfe, more popularly known as Randy California, who was one of the original members of the rock band Spirit. Led Zeppelin’s Jimmy Page and Robert Plant were accused of infringing the copyright for Spirit’s song “Taurus.” The materials being disputed were the four bars forming the riff in “Taurus” and a similar riff in Led Zeppelin’s hit song “Stairway to Heaven.” 

“Five experts were called, giving evidence on different issues. The defendant’s expert on musicology, Dr. Lawrence Ferrara, not only said that the same descending chromatic scale had been around for 300 years, but he was pulling it out of songs totally different from ‘Stairway to Heaven,’” Hwang said. Among the songs were “Hotel California” by the Eagles, “Michelle” by the Beatles, “Chim Chim Cher-ee” from the movie Mary Poppins, “Ballad of a Thin Man” by Bob Dylan, “My Funny Valentine” and “Cry Me A River.” 

“It was decided that the four bars that make up the riff – a descending chromatic arpeggio – were formed from musical building blocks so common in music history that they were not protectable,” Hwang explained. 

“There is no need to prove intention. You can be liable for innocent copying and indirect copying. A defendant can even be liable for subconscious copying. As such, copyright infringement in Singapore operates within a strict liability regime,” he added. 

Challenges in distinguishing inspiration from copyright infringement 

The idea-expression dichotomy actually presents a challenge. As mentioned, copyright laws do not protect the idea itself. They protect the expression of that idea, which comes in various forms such as text, music, visuals and others.  

“But when does an idea become sufficiently expressed to warrant protection?” asked Swarup. This question arises especially when both creative works have common sources or themes. “When both works draw inspiration from the same historical events, social trends or common tropes, similarities might arise naturally, making it harder to prove infringement. The courts have acknowledged that similarities are bound to occur when the origin of the work is the same,” he said. 

Hwang offered another example: the right granted by an author to adapt his novel into a dramatic work and vice versa. “Very often, making an adaptation requires both the plot, which is the idea, and dialogue, which is the expression, to be reworked. By granting authors of literary works the right to exclude others from adapting their works, the law has blurred the line between idea and expression. Singapore’s Copyright Act 2021 has expanded the definition of ‘adaptation’ to include dance and mime, further aggravating the situation,” he said. 

Proving the existence of copyright infringement is inherently subjective. Thus, another challenge arises. “Copyright infringement does not happen only when two works are alike. Rather, it is what has been taken from the original work and whether that is substantial,” Hwang explained. 

According to Swarup, India’s copyright law does not explicitly define “substantial similarity.” As such, Indian courts typically rely on judicial precedents and the “ordinary observer” test.  

Several other jurisdictions adopt the “ordinary observer” test. This involves asking an average person without any particular expertise or knowledge of the subject whether he deems the overall look and feel of two artistic works to be substantially similar. “For example, if an average moviegoer would likely confuse a new film’s characters, plot devices and overall presentation with a copyrighted film, it could suggest infringement,” Swarup stated. The problem with this test, he added, is that it is inherently subjective and can lead to inconsistent interpretations. 

Swarup mentioned that assessing substantial similarity often involves considering both quantitative similarity and qualitative similarity. Quantitative similarity refers to the amount of the copyrighted work used, while qualitative similarity refers to the importance of the copied elements to the piece of creative work or their originality. 

According to Hwang, what is substantial is qualitative and not quantitative. Thus, copying even a small portion of the artistic piece may still amount to copyright infringement if that small portion is significant enough to be the actual “heart” of the creative work.  

Take, for example, a “sampling” of an earlier recording, where a portion of a pre-existing sound recording is incorporated into a new recording. “If the quantity taken or used is not huge, we have to consider if the part taken is striking, novel, whether it is significant or whether it is copyright protectable by itself. A certain number of bars in a song could constitute infringement if it is highly recognizable. Alternatively, if these bars are held to be unprotectable by themselves, no infringement could arise,” said Hwang. 

“Using the same core melody and rhythm of a song, even with slightly different instrumentation or lyrics, could be considered substantially similar and thus infringing,” Swarup added.  

And then there are the nuances of “originality.” In the past, the “sweat of the brow” doctrine, which emphasized labour and skill, took on more importance under India’s copyright law. But now, Indian jurisprudence leans towards a “modicum of creativity” standard. This standard requires some intellectual effort and creativity.  

“Determining whether a work meets this threshold of originality, and whether the copied elements were indeed original in the first place, can be contentious. Reference may be taken of the judgment of the Hon’ble Supreme Court of India in Eastern Book Company v. D.B. Modak, where the court dealt with the originality of law reports and the extent to which mere labour in creating a compilation – the ‘sweat of the brow’ – warrants copyright protection. The Supreme Court emphasized the need for a minimal degree of creativity, moving away from a pure ‘sweat of the brow’ approach to a ‘modicum of creativity,’ which adds another layer of complexity to assessing originality,” Swarup explained. 

The digital age is blurring the line between copyright infringement and inspiration even further as it makes the copying, sharing and distribution of creative works easier. All these have resulted in greater accessibility to copyrighted materials, spurring more creators to either be inspired by them or copy substantial elements or portions from them. 

Further compounding the problem is the general lack of awareness of copyright laws. This may lead to unintentional infringement and difficulties in enforcing rights. 

In India, the lack of specialized IP courts adds another layer to the problem. Progress has been made in this regard, of course, with the establishment of IP courts in Delhi and Chennai. But more is needed. The technical and complex nature of copyright disputes requires more such courts in India for these cases to be efficiently handled. 

How should copyright holders and lawyers navigate these challenges? 

Below are some broad strategies for creators of artistic works: 

Document the production process and keep records. Keep records of the creation process for your artistic works. These include drafts, sketches and recordings.  

“Make sure you do not record background noises, especially if there is music when making a film,” Hwang advised. “Basically, it is for filming outdoors where our surroundings are not totally within our control. We do not want to be faced with a copyright infringement claim for a song which has been included in a scene not by design.” 

Aside from establishing the originality of the creative work, these records also prove the timeline of creation.  

Register the copyright. Copyright registration may not be mandatory, but it does provide valuable evidence of ownership. Plus, it can simplify proceedings. 

Clear Communication and Licensing. When allowing others to use your artistic work, communicate your rights and usage terms clearly. Reduce ambiguity and potential disputes by having licensing agreements that explicitly define permissible uses and restrictions. 

Proactive Monitoring. Regularly monitor the market and online platforms to check for copyright violations. Use modern tools and available services to track infringing content. 

Strategic Enforcement. “Prioritize enforcement efforts based on the potential impact of the infringement. Not every instance of unauthorized use warrants legal action. Consider sending cease and desist notices as a first step before resorting to litigation,” Swarup suggested. 

Collaboration and Industry Standards. Learn best practices of copyright protection and enforcement by engaging with industry associations and other copyright holders. 

Distinguishing between copyright infringement and product of inspiration is a nuanced process. Meanwhile, creators will continue to produce artistic works and imitators or infringers as well as fellow creative workers who take inspiration from them will always be around. Hence, the debate continues. To what direction this conversation is headed to remains to be seen.