Understahl, Jennifer.  "Copyright Infringement and Poetry: When is a Red Wheelbarrow the Red Wheelbarrow?"  Vanderbilt Law Review
        58.3 (2005): 915-54.

        Understahl observes that courts apply a substantial similarity test when determining whether a particular work of literature infringes existing copyright.  She argues that courts fail to take into account the difference between different literary genres, and subsequently that different genres call for varying thresholds of originality.  Moreover, courts lack a clear standard for establishing substantial similarity, disagreeing on the application of the "pattern" and "total concept and feel" tests, as well as on whether the burden of recognizable infringement should fall to the "lay observer" or to an "intended audience."  The various expressive works encompassed by the umbrella term "literature" thus merit the formulation of individual standards for establishing substantial similarity.  For instance, literature often features phrases in which the sound complements the sense.  The sounds created by juxtaposing certain words can carry significance, as when a phrase describing Satan contains an abundance of sibilants, evoking the hiss of the serpent frequently employed to depict Satan in illustrations.  If the same phrase occurs in an op-ed column about a celebrity, the context largely determines that readers will attend to the sense, and assume that effects of sound are incidental. 

        In essence, Understahl argues that the idea/expression dichotomy collapses in the case of literary.  Adopting Pound's dictum that poetry is "the most concentrated form of verbal expression, she suggests that poetry warrants the lowest minimal standard for originality.  Typographical decisions, most notably features like the placement of the poem on the page, line length, enjambment, spacing, and strophic organization, all create substantial dissimilarities between copyrighted text and "new" writing, when justified as integral to that which the poem is designed to express.  Moreover, poems that borrow language from this "new" writing but cast the language in a new form ought to be determined original.  The substantial similarity test, Understahl argues, would even fail to find William Carlos Williams' "The Red Wheelbarrow" copyrightable.  She proposes an "expressive elements" test that evaluates the relation between form and content on a sliding scale of substantial similarity, one that accounts for the features that characterize poetic expression.  The projected benefits are greater consistency in substantial similarity determinations and less overprotection.  Moore's poetry would benefit from the adoption of this test, given the prevalence of sampling and quotation.  Understahl draws on a surprisingly wide range of poets to substantiate her remarks about poetry as an art form, demonstrating the viability of the proposed test within the artistic community under consideration.  Because she mentions no cases in which the court slighted poetic originality, the issues seem prospective, if no less important.

Gregory, Janice.  Quotation and Modern American Poetry: "Imaginary Gardens with Real Toads."  Houston, TX: Rice UP, 1996.

        Gregory's study compares the poetics of quotation in T.S. Eliot, William Carlos Williams, and Marianne Moore.  Quotation, she argues, either draws on the authority of what a writer quotes or parodies that same authority.  She identifies four pre-Modernist conceptions of the function of quotation, each allied with a different epoch: Christian antiquity and the medieval, Renaissance, and Romantic periods.  Apostolic and Pauline texts quote Jesus and the Old Testament to invoke the awe of revelation, the binding force of law, and to establish their own authority.  Medieval writers invoke the same authority from non-Christian authors, especially Aristotle.  The Renaissance, through figures like Erasmus and Cervantes, instigates the double character of quotation, useful for authorization and parody.  The Romantic period witnesses the rise of a discourse of originality that created immense anxiety in poets like Coleridge and Wordsworth over their belatedness in relation to great poets like Milton.  Their rare instances of quotation are in the service of transferring authority to modern, secular forces.  Setting this anxiety in an American context, Emerson insists in the 1830s that originality and quotation are not mutually exclusive, thus setting the stage for poetry that acknowledges a great debt to tradition but nevertheless seeks to establish an original relation to the universe.    

        Gregory argues that Eliot, Williams, and Moore all employ quotation to explore the way authority is gendered, particularly with reference to America's belatedness in secular history.  Borrowing on the work of Marie Borroff, Gregory demonstrates how Moore's inclusion of "promotional prose" and the text from park monuments, intimate conversations, volumes of natural history, and other non-canonical language alongside quotations from Yeats and allusions to Browning throws into question the hierarchies on which the authority of quotation rests.  These "unauthoritative" texts enter the realm of literature for multiple purposes, among them revaluation, modest depersonalization, and the establishment maternal authority.  Gregory also suggests that Moore's practice of quotation influenced T.S. Eliot, not the other way around, by convincing him that he could fashion poetry "out of a refusal to digest the fragments of the texts that inspired it."  Gregory allows me to argue that Moore's practice of quotation serves several of the analogous functions that sampling serves in music, and subsequently that there might be a causal relationship between Moore's nationality and the views she held on quotation.