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This comment examines the Hoehling decision, and attempts a definition, in light of Hoehling and prior decisions, of historical "expression." A definition of historical expression is essential to analysis of an historian's infringement claim. Before the fact-finder determines whether a defendant's work is substantially similar to the historian's work, and if substantially similar, whether the fair use doctrine excuses the apparent infringement, the trial judge must first determine whether, as a matter of law, the portions the historian claims were infringed manifest copyrightable expression. If there is no or insufficient expression, the case closes at the summary judgment stage.

This comment argues that, as a matter of law, the components of historical works, that is, the historian's selection and arrangement of facts, narration, critical judgments, and theories, form an original work of authorship entitled to copyright protection. These elements all comprise the historian's "expression". For, much as a play comprises an accumulation of original plot and character detail based on an underlying – and unprotectible – rudimentary story line, an historical work comprehends a particular author's careful assembly of elaborated thoughts based on underlying facts.


Intellectual Property Law | Law