Claire Corlett

Fish Food, Fish Tanks, and More
William Fisher, CopyrightX: Lecture 1.3, Foundations of Copyright Law: Idea/Expression Distinction

William Fisher, CopyrightX: Lecture 1.3, Foundations of Copyright Law: Idea/Expression Distinction

We turn now to the second of
the foundational doctrines in copyright law: the
idea/expression distinction. Every system of copyright
law contains some version of this distinction. In US law, its statutory
locus is section 102(b) of the Copyright
Act, which provides “in no case does copyright
protection for an original work of authorship
extend to any idea, procedure, process, system,
method of operation, concept, principle, or
discovery.” (Some scholars, such as Professor
Pam Samuelson, argue that this provision
reaches more broadly than the idea/expression
distinction, but I’ll put that controversy
aside for the time being.) In the Eldred case,
which we will consider in a subsequent lecture, the
United States Supreme Court suggested that the
idea/expression distinction is necessary in order
to reconcile copyright law with the
principle of freedom of speech embodied in
the First Amendment of the federal Constitution. Lots of other examples
of this distinction can be found in the
law of other countries. So what exactly is this famous,
fundamental distinction? It’s easy to state, but
surprisingly hard to apply. The key concepts
are clear enough: neither ideas nor
facts are protected by copyright law; only the way
in which an author expresses ideas or facts is protected. Simple enough. Unfortunately, the key terms
— idea, fact, expression — are all ambiguous and contested. To figure out what
they mean, you need to examine some
applications of the principles. HERE’S A GENERAL GUIDELINE:
when interpreting and applying the idea/expression
distinction, try to avoid attributing to those
terms their ordinary meanings. Think of them rather
as “terms of art,” shorthand references to loose
clusters of things that, for policy reasons,
the law includes in — or excludes from — copyright. Against this backdrop,
let’s consider some of the contexts in
which the idea/expression distinction arises. The first such context is
known as the merger doctrine. Suppose there is only one
set of words that accurately conveys a particular idea. In such a situation,
the principle that ideas are unprotected and
the principle that expression is protected clash. Which prevails? The principle that
ideas are unprotected. So anyone else is free to use
that uniquely appropriate set of words with impunity. Such situations arise
more often than you might think-particularly the
context of computer software. But we will wait to take up
those illustrations until lecture # 3, when we will
consider the various kinds of works that copyright covers. The second context is known as
the scenes-a-faire doctrine. The 1978 case of
Alexander versus Haley provides a good illustration. The basic facts of that
case were as follows: prior to the publication
of Alex Haley’s book Roots, the plaintiff wrote
a similar book about the history
of her own family during slavery and about
her own gradual awakening to the importance
of her heritage. When Roots was published
and became famous, the plaintiff brought a
copyright infringement suit against Haley. In support of her
claim, the plaintiff provided a long list of
parallels between her book and Roots, arguing that Haley
had copied heavily from her. The court eventually ruled
that, despite the large number of similar scenes,
Haley had not engaged in copyright infringement. One of the grounds on
which the court rejected many of the
plaintiffs assertions is that they involved
so-called scenes-a-faire. Here’s the language in which the
court expresses this judgment: “These are incidents,
characters or settings which are as a practical matter
indispensable, or at least standard, in the treatment
of a given topic. Attempted escapes, flights
through the woods pursued by baying dogs, the sorrowful
or happy singing of slaves, the atrocity of the buying
and selling of human beings, and other miseries are all
found in stories at least as old as Mrs. Stowe’s. Other examples include
scenes portraying sex between male slave
owners and female slaves and the resentment of
the female slaveowners; the sale of a slave child
away from her family and the attendant agonies; the
horror of punitive mutilation; and slave owners complaining
about the high price of slaves.” All of these images,
the court ruled, constituted unprotected
ideas, because they were standard vignettes in the
genre of US slave narratives. Some more recent, and
perhaps surprising, applications of this
doctrine of scenes-a-faire involve photography. Here too, courts refuse to grant
copyright protection to images that they conclude are
standard or typical of a particular genre. For example in the 2005 case
of Bill Diodata Photography versus Kate Spade, the
plaintiff contended that this photograph, which
appeared in an advertisement for women shoes, was
infringed by this one. The court rejected
the argument, arguing that the positioning
of a model sitting on the toilet with her
feet angled inward, though “seemingly unnatural,”
was a common trope; photographing stylish women in
this pose to showcase fashion accessories was an idea “used
often in popular culture.” Similarly, in the
2003 Gentiu case, the photograph on the
right side of this slide was held not to infringe the
copyright in the photograph on the left side, because, even
if one photographer had been imitating the other, the
compositional elements they had in common were “standard
photographic conventions or devices” and thus
not copyrightable. Here”s a more straightforward
application of the same general principles. Suppose I write and
publish a cookbook — a collection of recipes
of a particular sort. Suppose further that I created
some of those recipes myself. You copy some of my
recipes and include them in your own cookbook. Have you engaged in
copyright infringement? If the recipes that you copied
contain nothing more than descriptions of
ingredients, quantities, ways of combining things,
cooking times, and so forth — in other words, instructions for
creating the dishes in question — then the answer is no. The reason is that
unadorned recipes are said to be ideas or
“methods of operation” and thus not subject to
copyright protection. By contrast, if the recipes
you copied included expressive embellishments — for example
descriptions of how the dishes taste or suggestions concerning
social circumstances for which they would be appropriate —
then you would be in trouble, because such things are
considered expression. Maps have been protected
by copyright law for a very long time. But not all components of maps
enjoy copyright protection. For example, the location
of roads, mountains, rivers, and political boundaries; the
names of cities and towns; are all excluded from
copyright protection. Thus you can copy such things
from someone else’s map onto your own without
running afoul of the law. This shouldn’t be
terribly surprising. More interesting is the fact
that newly coined place names are not shielded. Suppose, for
example, an explorer surveys a remote
mountain range, selects names for the hitherto
nameless peaks, and draws up a map that
includes those new names. Another cartographer copies
those features and those names into his own map. Copyright infringement? No. It’s sometimes said that
the newly applied names, although created
by the Explorer, become facts once applied
to features in the world. But that can’t be right. By the same logic,
the text of my novel becomes a “fact”
once it’s published, and I lose copyright
protection for it. A more plausible reason is
that to recognize copyright protection for newly created
place names would frustrate important public policies
— concerning communication of geographic information. Latent in that
rationale is the seed of a much more general
principle that will flower in subsequent lectures. So what aspects of maps do
enjoy copyright protection? The answer is original
selection, arrangement, or presentation of individually
unprotected elements. The net effect is that entirely
conventional maps receive no protection whatsoever. Consider, for example,
this screenshot of a map created by Google of
the sector of Cambridge, Mass., that includes
Harvard University. If I copy it without
permission, as I have done for the
purpose of this slide, have I engaged in
copyright infringement? Probably not, because
it’s difficult to locate in the Google map any
unconventional selection or presentation element. We come, finally, to the
tricky case of history. Perhaps the most striking
effect of the idea/expression distinction is the
limited legal protection enjoyed by works of history. Suppose I spend years
investigating the life of a little-known politician
— and then write and publish a biography of him. You read my book, and
then, relying on it, quickly write your own biography
of the same politician. You’re a better writer than I
am, so your book sells better. I’m angry. I point out that you could
not have written your book without mine, and that
most of the story I told, and most of the arguments
I made, in my book can be found in yours. Do I have a copyright
claim against you? If the things you lifted from
me consists of facts about the life of the politician,
then the answer is no — no matter how much time and pain
it took me to ferret them out. This principle
governed the outcome of the litigation
between two historians, arising out of the
close similarity between 2 biographies
of the Rosenbergs, who were tried for
treason in 1953. Because all of
those similarities were deemed to involve
facts, the defendant escaped liability. What if I included in my
biography some speculations, and the same speculations
appear in yours? If I have represented my
speculations as facts, then they too are unprotected. The rule underlying this outcome
is known as copyright estoppel. Having depicted an
assertion as a fact, I am said to be estopped from
subsequently re-characterizing it. So, for example, in the Nash
case, the Court of Appeals ruled that the
plaintiff’s contention in his book the John Dillinger
had not been killed by the FBI at the Biograph Theater but
had lived on in California was not protected by copyright,
because the plaintiff had offered that
contention as a fact. What if you lift from
my biography, not a factual contention,
but an historical theory? Once again, I will lose,
but for a different reason: historical theories
are considered ideas — and thus unprotected. So for example in the Hoehling
case, the Court of Appeals held unprotected the
plaintiff’s assertion that the Hindenburg
dirigible had been destroyed by a
member of its crew in an effort to
discredit the Nazis. The bottom line is that
an historian should not expect to get much protection
from copyright law. If a second historian copies
significant hunks of her prose, or closely tracks
original ways in which she has expressed arguments,
she will have a claim. But if, as in the usual
case, a second historian free-rides on her research
and lifts facts or ideas from her books, she
has no recourse. These examples surely do not
exhaust the various contexts in which the idea/expression
distinction has been applied to limit the scope
of copyright — but they should suffice to give
you an overall sense of the law in this area.

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