A Research On Substantial Similarity Of Fine Art

China promulgated the first edition of "Copyright Law of the People's Republic of China" in 1990,and it has been nearly 30 years since its implementation.Infringements resulting fromsimilarity showed in both works often took place in those years.The development of the Internet and various communication technologies makes the spread of the fine art more convenient and rapid,and it has been more and more common to see infringements happening due to their similarity.However,it doesn't mean similarity equals infringement,because the similarities showed in respective works may fall into the area of idea,public domain or limited expressions.The aim of Copyright Law is to promote a richer information creation.In order to achieve this goal,the system of Copyright Law is designed on the one hand to grant creators of some exclusive rights to ensure their economic benefits gained from their works,on the other hand to preserve for the public some freedom and space of creation.Modest reference and imitation of others' works are permitted,but infringement happens when the reference and imitation go beyond some extend and make the alleged infringing work constitutes substantial similarity to the original work.The standard of “substantial similarity” is the criterion of infringement,which also a means of achieving the balance of above benefits.Firstly,this article gathers statistics of our judicial practice involving the judgment of substantial similarity of works of art.Then the article summarizes these statistics in relevant categories.Problems existing in our judicial practice are found after carefully studying the reasoning of our courts.In order to solve the problems mentioned in chapter one,it is necessary to clarify some basic theories and principles underlying copyright law.The second chapter of this article briefly reviews and explains the legal status of substantial similarity and some relevant approaches of judging whether substantial similarity exists.Also this chapter invokes two cases happened in recent years in the United Stateson infringements of works of art,which will contribute to the understanding of above mentioned approaches and provide a good example to learn from.Chapter three analyzes the particularity of the works of art in comparison to literary works.And also analyzes the limitations of the approaches used to identify whether substantial similarity exists and the benefits learned from those approaches.According to the above mentioned problems in chapter one,and also considering the basic theory and principles underlying copyright law,together with some relevant beneficial attempts of judicial practice in China,chapter four comes up with a set of logic path of judgment to improve the present condition of substantial similarity judgment of works of art.To be specific,firstly,making a dissection of the plaintiff's work,and identifying the original expression in the exclusion of idea,public domain and limited expression;Secondly,ranking the level of the originality of plaintiff's work in order to decide the proper observers;Lastly,making comparison between the two works in the aspects of mode of composition and descriptions,and combining the overall impression of the proper observers.