In a copyright infringement dispute, when assessing whether a defendant’s work is substantially similar to, and therefore infringing, a plaintiff’s, a court must first determine which works to compare. A unique issue arises when a defendant has appropriated material from multiple works in a series or collection by a plaintiff. A court must decide whether to examine material taken from each of a plaintiff’s individual works (such as the individual episodes of a television show or each book in a series) or to analyze the body of works collectively. The latter approach has been referred to as “aggregation” analysis, approach, or theory. This Note highlights the unpredictable application of aggregation analysis in copyright infringement disputes, examines how the analysis defies the language of the Copyright Act, and argues the unsettling discord that the analysis creates undermines the fundamental goals of copyright law. It cites prominent cases involving fictional- fact reference works as examples that illuminate the risks of aggregation and discusses the issues that arise when a plaintiff elects to receive statutory damages. Ultimately, this Note offers alternatives to aggregation that aim to promote consistent interpretation of the Copyright Act and avoid a windfall for copyright owners when courts find infringement.
Columbia Law Review AGGREGATION ANALYSIS IN COPYRIGHT INFRINGEMENT CLAIMS: THE FATE OF FICTIONAL FACTS