Welcome to the snowpocalypse version of copyright class. This is where following a virtual version has its advantages. The live class was actually canceled since the law school was closed today. I decided to go ahead with the class here on the blog.
Today’s class will continue to explore the lack of copyright protection for ideas. One of the most basic principles of copyright is that copyright protects expression but not ideas. Last week’s class examined this from the standpoint of attempts to protect “facts.” Because those “facts” were not created by the author, but instead were discovered, they did not receive copyright protection. They were not original.
This week, we are still dealing with ideas, but these ideas are created by someone. They can be seen as originating from the author, but the law still might not protect them. What we will see is that ideas are not protected but expression is.
In writing, we might describe this as an idea for a book. If I write a book about a vampire hunter who rides a unicorn, can I get copyright protection for that idea? Could I successfully sue someone who wrote a completely different novel about a vampire hunter who rides a unicorn? That’s the question we want to answer today.
A Brief Meta Detour
But before we get into that, I’d like to go a bit meta on you. There are a couple of things I want to tell you about this blog series, based on comments and feedback I’ve gotten up until this point.
1. I’m linking to the full text of each case. If you want a fuller effect, you should be reading those primary texts. Of course, you still won’t have anything close to the full copyright class experience (see the caveats here), but you should get more out of it if you read the full texts. The easiest approach would be to get a copy of the casebook we are using Copyright Law: Essential Cases and Materials by Yen ad Liu. But it costs around $200 – so I’m not expecting that to be a popular option. That’s why I’m linking to online versions of the cases. Just be aware that the online versions of the cases are not edited as the cases in the book are. Quite often they will contain and discuss many more issues than what we are reading them for. So you will want to realize that portions of the cases will not be relevant to what we are discussing that week.
I have been putting some of the highlights in the posts themselves, but I’m not going to necessarily put everything in the posts themselves for two reasons.
First, I’m not trying to write a book. And that’s what it would be if I included every detail.
Second, the posts would be too long for what some people want. So you have a choice. Read just the posts or read the cases plus the posts. Either is fine, just realize you are getting a different experience with each option.
2. Keep in mind that a little knowledge can be a dangerous thing. No one is going to come out of this blog series as a copyright lawyer. Even a law student taking the full course is just taking the first step toward being a copyright lawyer.
Ideas and Copyright Protection
OK, with those points out of the way, let’s get back to the content: Ideas and Copyright Protection. Expression is protected by copyright; ideas are not.
Baker v. Selden
This is one of the most cited cases in the copyright world. It involved a book on a particular system of accounting that the author licensed to various government agencies in Ohio. That’s right! An accounting book! Clearly this is going to a thriller the like soy which would make Patterson himself jealous.
They third paragraph nicely sums up the dispute:
The book or series of books of which the complainant claims the copyright consists of an introductory essay explaining the system of bookkeeping referred to, to which are annexed certain forms or banks, consisting of ruled lines, and headings, illustrating the system and showing how it is to be used and carried out in practice. This system effects the same results as bookkeeping by double entry, but, by a peculiar arrangement of columns and headings, presents the entire operation, of a day, a week, or a month on a single page or on two pages facing each other, in an account book. The defendant uses a similar plan so far as results are concerned, but makes a different arrangement of the columns, and uses different headings. If the complainant’s testator had the exclusive right to the use of the system explained in his book, it would be difficult to contend that the defendant does not infringe it, notwithstanding the difference in his form of arrangement; but if it be assumed that the system is open to public use, it seems to be equally difficult to contend that the books made and sold by the defendant are a violation of the copyright of the complainant’s book considered merely as a book explanatory of the system.
So the question is whether the Selden’s copyright in his accounting book is infringed by a book that (1) describes a system (and provides forms for such a system) that works in the same way as Selden’s system but that (2) does not copy the actual text and forms in Selden’s books. Stated another way, the question is whether the copyright in the book protects the system itself.
The Court concludes that it does not, stating “[b]ut there is a clear distinction between the book as such and the art which it is intended to illustrate.” The latter, as the Court pointed out, could only be protected by a patent if at all. The Court concluded:
The conclusion to which we have come is that blank account books are not the subject of copyright, and that the mere copyright of Selden’s book did not confer upon him the exclusive right to make and use account books, ruled and arranged as designated by him and described and illustrated in said book.
That conclusion if read too broad might arguably be incorrect. It goes further than what the court actually discussed. In other words, the court found that what was copied from Selden was not protected by copyright. For example, if someone had directly reproduced Selden’s books exactly word for word, form for form, then we would probably not have any trouble saying some level of copyright infringement occurred. If they reproduced his forms exactly but not the text, we would have a much tougher question, involving a doctrinal analysis beyond what Baker v. Selden covered.
Nichols v. Universal Pictures Corp.
Of all the cases we have read so far, this one is probably the most directly relevant for authors. It really gets at the heart of the question I asked above. You know, the one involving a vampire hunter riding a unicorn.
The opinion was also written by a judge not only famous but also blessed with one of the greatest names ever for a judge – Learned Hand. Yep, Judge Learned Hand. Who needs a pen name when you have a real name like that?
The dispute involved the author of a play (“Abie’s Irish Rose”) arguing that a movie (“The Cohen’s and the Kelly’s”) infringed his copyright. In order to understand the implications of the court’s holdings, it is critical to understand the similarities and differences between the two. And because I am too lazy to paraphrase all of it but not quite too lazy to cut and paste from the case, you get a long block quote:
“Abie’s Irish Rose” presents a Jewish family living in prosperous circumstances in New York. The father, a widower, is in business as a merchant, in which his son and only child helps him. The boy has philandered with young women, who to his father’s great disgust have always been Gen- tiles, for he is obsessed with a passion that his daughter-in-law shall be an orthodox Jewess. When the play opens the son, who has been courting a young Irish Catholic girl, has already married her secretly before a Protestant minister, and is concerned to soften the blow for his father, by securing a favorable impression of his bride, while concealing her faith and race. To accomplish this he in- troduces her to his father at his home as a Jewess, and lets it appear that he is interested in her, though he conceals the marriage. The girl somewhat reluctantly falls in with the plan; the father takes the bait, becomes infatuated with the girl, concludes that they must marry, and assumes that of course they will, if he so decides. He calls in a rabbi, and prepares for the wedding according to the Jewish rite.
Meanwhile the girl’s father, also a widower, who lives in California, and is as intense in his own religious antagonism as the Jew, has been called to New York, supposing that his daughter is to marry an Irishman and a Catholic. Accompanied by a priest, he arrives at the house at the moment when the marriage is being celebrated, but too late to prevent it, and the two fathers, each infuriated by the proposed union of his child to a heretic, fall into unseemly and grotesque antics. The priest and the rabbi become friendly, exchange trite sentiments about religion, and agree that the match is good. Apparently out of abundant caution, the priest celebrates the marriage for a third time, while the girl’s father is inveigled away. The second act closes with each father, still outraged, seeking to find some way by which the union, thus trebly insured, may be dissolved.
The last act takes place about a year later, the young couple having meanwhile been abjured by each father, and left to their own resources. They have had twins, a boy and a girl, but their fathers know no more than that a child has been born. At Christmas each, led by his craving to see his grandchild, goes separately to the young folks’ home, where they encounter each other, each laden with gifts, one for a boy, the other for a girl. After some slapstick comedy, depending upon the in- sistence of each that he is right about the sex of the grandchild, they become reconciled when they learn the truth, and that each child is to bear the given name of a grandparent. The curtain falls as the fathers are exchanging amenities, and the Jew giving evidence of an abatement in the strictness of his orthodoxy.
“The Cohens and The Kellys” presents two families, Jewish and Irish, living side by side in the poorer quarters of New York in a state of perpetual enmity. The wives in both cases are still living, and share in the mutual animosity, as do two small sons, and even the respective dogs. The Jews have a daughter, the Irish a son; the Jewish father is in the clothing business; the Irishman is a po- liceman. The children are in love with each other, and secretly marry, apparently after the play opens. The Jew, being in great financial straits, learns from a lawyer that he has fallen heir to a large fortune from a great-aunt, and moves into a great house, fitted luxuriously. Here he and his family live in vulgar ostentation, and here the Irish boy seeks out his Jewish bride, and is chased away by the angry father. The Jew then abuses the Irishman over the telephone, and both become hysterically excited. The extremity of his feelings makes the Jew sick, so that he must go to Florida for a rest, just before which the daughter discloses her marriage to her mother.
On his return the Jew finds that his daughter has borne a child; at first he suspects the lawyer, but eventually learns the truth and is overcome with anger at such a low alliance. Meanwhile, the Irish family who have been forbidden to see the grandchild, go to the Jew’s house, and after a vio- lent scene between the two fathers in which the Jew disowns his daughter, who decides to go back with her husband, the Irishman takes her back with her baby to his own poor lodgings. [*121] The lawyer, who had hoped to marry the Jew’s daughter, seeing his plan foiled, tells the Jew that his for- tune really belongs to the Irishman, who was also related to the dead woman, but offers to conceal his knowledge, if the Jew will share the loot. This the Jew repudiates, and, leaving the astonished lawyer, walks through the rain to his enemy’s house to surrender the property. He arrives in great dejection, tells the truth, and abjectly turns to leave. A reconciliation ensues, the Irishman agreeing to share with him equally. The Jew shows some interest in his grandchild, though this is at most a minor motive in the reconciliation, and the curtain falls while the two are in their cups, the Jew in- sisting that in the firm name for the business, which they are to carry on jointly, his name shall stand first.
Judge Hand started his analysis by pointing out that if literal copying were required in order for infringement to be found, then it would be painfully easy for someone to copy a work while escaping liability. Would you think someone could just change the names of the characters in a book and thereby escape from copyright infringement? Clearly not. Thus it should be apparent that an exact word for word copy is not necessary for a plaintiff to make out a basis for infringement.
However, if the copier only takes the most basic premise, then the copier may not be an infringer. Note that the case is not talking about a motion picture that happens to be similar to a play. The analysis and conclusion assumes that the creators of the movie did take the premise from the play – and still found no infringement.
But when the plagiarist does not take out a block in situ, but an abstract of the whole, decision is more troublesome. Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his “ideas,” to which, apart from their ex- pression, his property is never extended.
This series of abstractions is at the heart of what we call the idea/expression dichotomy. Ideas are not protected but expression is. Thus, copying ideas is not infringement while copying expression is. But what constitutes “idea” and what constitutes “expression”? That’s where the series of abstractions comes into play.
If we examine the plaintiff’s play in each detail, scene for scene, word for word, we would say that we are looking at expression. We could then imagine a series of abstractions of that play where each level in that series contained fewer and fewer details, The series would continue until we got the most basic, most abstract, description of the play – something like “a comedy about the marriage of children of Irish and Jews. The idea/expression dichotomy says that at some point along that series in the direction of increased detail copyright protection begins. In over words, adding enough details and specifics results in ideas becoming expression. With too few details, no copyright protection can be had.
A comedy based upon conflicts between Irish and Jews, into which the marriage of their children enters, is no more susceptible of copyright than the outline of Romeo and Juliet.
Where do we draw that line? Well, we draw it between idea and expression. How do we know what is idea and what is expression? We draw that line. Yep, it’s that clear. As Judge Hand said, “Nobody has ever been able to fix that boundary, and nobody ever can.”
The court determines that the movie only takes the most basic of plots from the play – the conflict created by children from families of different religions who want to marry. (It was the 1920’s.) The differences between the two become apparent once you go deeper than the highest level of abstraction. The court also concludes any similarities between the two in terms of characters are to basic to qualify as infringement.
If we put this into publishing terms, we would say that something like a log line using generic characters is almost assuredly idea. As you turn that basic concept into an outline and start adding more specifics and more details, the whole of it at some point becomes expression that is protected by copyright.
Kregos v. Associate Press
Kregos picks up where Baker v. Selden left off – namely with the question of whether a blank form could be protected by copyright. It also involves a subject matter as boring as accounting – namely baseball. (Let the comment flaming commence!)
I’m not going to go into much detail here. Basically, Kregos created a form to list data about pitchers that he maintained had predictive value in how he pitchers would perform. This included making some decisions about what data to include (e.g. average base on balls for the pitcher’s last three games versus average base on balls for the pitcher that season). The court addressed two arguments that Kregos should not receive copyright protection.
First, the court said that the merger doctrine did not prevent protection. The merger doctrine basically says that if there is only one or very few ways to express an idea, then the idea and expression merge such that no copyright protection can be had. A common example is instructions for a simple game or contest. If there is only one (or a very limited number) of different ways to describe the rules of a game, then giving copyright protection to the description would effectively give someone copyright protection for the game itself. The court concluded that enough different types and combinations of data existed, that merger was not applicable.
Second, the court said that the blank form rule that emerged from Baker v. Selden did not prevent copyright protection. In essence, they said that the selection of data by Kregos might constitute enough originality to create copyright protection. Note that they said that even if it did, it would be very little copyright protection.
So, what’s the answer to our initial question? Can I sue someone who steals my idea for a book about a vampire hunter who rides a unicorn? That’s a big no. It’s just an idea.