68 Am. U. L. Rev. 139 (2018).

*William C. Conner Chair in Law, University of Texas School of Law.  This work was generously supported by The Honorable Nancy F. Atlas Intellectual Property American Inn of Court in Houston, Texas, through its Sponsored Scholarship Grants program administered by University of Houston’s Institute for Intellectual Property & Information Law (IPIL).  For useful comments I would like to thank Bob Bone, Sam Bray, John Golden, Patrick Goold, Craig Joyce, and Pamela Samuelson.  I am grateful to Erwin Reschke for excellent research assistance.

The requirement of improper appropriation as a precondition for copyright infringement, a bedrock principle of copyright, has been under attack in recent case law.  One line of attack attempts to eliminate the requirement in a specific area.  Another erodes the requirement by construing it as a de minimis exception to infringement across all copyrightable subject matter.  Ironically, a recent decision by the United States Court of Appeals for the Ninth Circuit that is commonly read as a staunch defense of the improper appropriation requirement represents the culmination of this second and far more dangerous line of attack.  The decision insists that the improper appropriation requirement equally applies across the law of copyright, thereby creating a circuit split.  It also construes, however, improper appropriation as a de minimis exception to copyright infringement and strictly limits it to cases where the original, as used in the user’s work, would not be recognized at all.  This approach adopts an extremely frail version of the improper appropriation requirement.  In effect this rule says:  “Get a license or never copy anything recognizable!”  This Article describes the process through which courts came to conflate the improper appropriation requirement with a de minimis exception.  It explores the function of the requirement by analyzing its origin and underlying policy.  Improper appropriation based on the criterion of substantial similarity is one of copyright’s most important doctrinal mechanisms for allowing breathing space for secondary creation and assuring that copyright does not become an impediment for the creativity it is supposed to promote.  The doubly narrow reading of the doctrine as a de minimis exception based on unrecognizability is inadequate for carrying out this function.  The de minimis version of improper appropriation is based on a fundamental misunderstanding of cultural creativity as a cumulative process and the role played by this doctrine with respect to it.  This Article argues that to properly carry out its function of ensuring a lively, dynamic, and just cultural sphere, there is a need for a much more robust improper appropriation doctrine than the de minimis version.  It also explains why neither the uncertainty of the improper appropriation standard nor the existence of the fair use doctrine supports trivializing the requirement.