On The Identification Of Substantial Similarity Of Art Works

"Substantial similarity" has been widely used since it was introduced into judicial practice in China,but there is no common view of its identification rules.Art works are one of the works explicitly stipulated in China's copyright law.With the continuous expansion of people's demand for art and the expansion of art market scale,there are more and more copyright infringement cases concerning art works.The key to the identification of copyright infringement of fine art works lies in the identification of substantial similarity.Therefore,it is of theoretical and practical significance to study the identification of substantial similarity of fine art works."Substantial similarity" originated in the United States and was later introduced into China's judicial practice.The theoretical basis of "substantial similarity" lies in the dichotomy theory of thought expression and the originality theory,which is the premise for judging the substantial similarity of works.The identification methods of the substantial similarity of American art works include the test of overall feeling and concept and the test of internal and external;The identification methods of substantial similarity in our judicial practice mainly include the test of overall feeling and concept,the test of abstract,the test of common audience.Art substantive decided that although the development of similar,but there is still a big trouble,art elements of the ambiguity of legal attribute in art works is difficult to define the protected elements,lack of substantive similar rules lead to substantial copyright law similar to that method is not unified,art the contradiction between visual perception and writing deconstruction analysis result in substantial similar general method of conflict with the characteristics of art itself.Therefore,it is necessary to improve the identification method of substantial similarity of art works.On the division of thought and expression,the analysis of the expression of art works should be based on the full understanding and acceptance of the ideas and situations that the artist wants to interpret.In determining the originality of art works,it is necessary to distinguish between reproducible art works and expressive art works,and set different originality standards for different kinds of art works.Second,determination of art substantive similar method,want to combine the overall look and feel and abstract test method,the first is determine whether constitute a substantial similar on the whole,then on the basis of the overall picture of fine arts,not from the overall situation,all the elements in the works will be using the same constituent elements of comparison.As for the identification subject of substantial similarity of art works,the audience of works is a reasonable subject.For the audience is the ordinary appreciator of the art works,with the standard of ordinary appreciator identified;For the audience is a work of art with specific professional knowledge,use the standard of the audience with specific professional knowledge to judge.