The unpredictable nature of copyright infringement cases has long been a thorn in the side of copyright owners and content creators. The courts have acknowledged that “[t]he determination of [copyright] infringement is one of the most difficult of all legal questions,” and at least one observer has noted that the courts’ rules for evaluating copyright infringement “make little sense.” Even recent decisions such as the highly publicized Blurred Lines and Stairway to Heaven cases enforce the suggestion that it is very difficult to determine the outcome of an infringement case.
This is in spite of the fact that the majority of tests adopted by courts to evaluate infringement include some version of an objective comparison of the two works in question. The subjective evaluation of the works is typically left to the jury. Unfortunately, the courts’ objective evaluations have often yielded inconsistent results.
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