Speaking of circuit splits on copyright law, the Eighth Circuit provided us with one today that provides an excellent example of why moving all copyright matters to the Federal Circuit would be a good idea. In Taylor Corp. v. Four Seasons Greetings LLC ("Taylor II"), No. 04–1088 (8th Cir. Apr. 11, 2005) (PDF), the "potentially controlling" issue is:

Four Seasons's substantial similarity argument raises a threshold, and potentially controlling, issue regarding our standard of review. In Taylor I, we assumed the district courts findings of substantial similarity were subject to review for clear error, [holding that] "The District Court's findings of substantial similarity between all six original cards and their allegedly infringing counterparts were not clearly erroneous."

Slip op. at 8 (citation omitted). This seems like common sense, doesn't it? After all, almost all other findings of fact after trial—and whether something is "substantially similar" is more a question of fact than of law—are reviewed under the clearly erroneous standard.

Unfortunately, things are not that simple. The Second Circuit, in contrast, reviews copyright findings of substantial similarity de novo—giving no deference to the factfinder whatsoever. In its view, there is no credibility determination involved in determining substantial similarity, and the appellate court is in just as good a position as was the district court to determine if the purportedly infringing work is in fact substantially similar to the copyrighted work. The Eighth Circuit cites only two of half-a-dozen or so cases in which the Second Circuit has reached this result.

Again, though, this is as much a civil procedure problem as an intellectual property problem. The correct answer, as the Eighth Circuit properly held, is that Fed. R. Civ. P. 52 requires more deference to the trial court than de novo review, even when the jury was only an advisory jury: that findings of fact "shall not be set aside unless clearly erroneous." Interestingly, the Eighth Circuit specifically analogizes to the Federal Circuit's jurisprudence on substantial similarity in patent cases as further support for its common-sense position. Taylor II, slip op. at 10.

There remain two nontrivial civil-proceduresque aspects of Taylor II that might bear careful examination if this was a law review article. It is not. Therefore, whether a permanent injunction was an appropriate remedy (there seems little doubt that it was) and whether Four Seasons Greetings' right to a jury trial was improperly denied (a much, much closer question than Taylor II makes it seem, cf. Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340 (1998) (finding a jury trial right when statutory damages are at issue)) with be left as exercises for the frustrated.