Tag Archives: idea/expression dichotomy

Copyright Class 9 – Infringement, Part II

This week we look at the second half of the infringement analysis. Well, it’s half if you consider it as one of two elements. However, if we look at how much work or effort you have to put into this, it’s much more than half.

As a brief review, last week’s class set forth the two elements a plaintiff had to prove (beyond owning a valid copyright): 1) copying and 2) improper appropriation. Copying basically means that the defendant actually copied form the plaintiff’s protected work in stead of, say, coming up with the similar work completely independently or copying from a third work from which the plaintiff also copied.

Improper appropriation asks whether what the defendant copied was substantially similar to that part of the plaintiff’s work protected by copyright. Is the allegedly infringing work substantially similar to the copyright protected elements of the plaintiff’s work?

Improper Appropriation – It’s Confusing

Exactly how a court applies or even states this test can vary a great deal depending on what court it is, what medium the works are in, and what the parties argue before the court. It can get pretty murky if you sit down and try to figure out exactly what the test is. Additionally, the actual application of the test is far from a bright line. So when a lawyer equivocates on whether you “can do something” or not without running a foul of copyright, this is one of the main reasons. (Of course, the lack of any bright line rules in Fair Use is the other main reason.)

Peter Pan Fabric's print

Peter Pan Fabric’s print

The famous Judge Learned Hand explained why the test is so hard to nail down in Peter Pan Fabrics v. Martin Weiner Corp, a case involving similar designs printed on fabric:

The test for infringement of a copyright is of necessity vague. In the case of verbal “works” it is well settled that although the “proprietor‘s monopoly extends beyond an exact reproduction of the words, there can be no copyright in the “ideas” disclosed but only in their “expression.” Obviously, no principle can be stated as to when an imitator has gone beyond copying the “idea,” and has borrowed its “expression.” Decisions must therefore inevitably be ad hoc. In the case of designs, which are addressed to the aesthetic sensibilities of an observer, the test is, if possible, even more intangible. No one disputes that the copyright extends beyond a photographic reproduction of the design, but one cannot say how far an imitator must depart from an undeviating reproduction to escape infringement.

Martin Weiner Corp's print

Martin Weiner Corp’s print

Essentially, copyright infringement would be a lot clearer if we said only exact reproductions were infringing. That would make it much easier to predict the outcomes of cases. But we wouldn’t think it was particularly fair if someone could just make a few minor changes and get away with copying the rest? And that wouldn’t really effectuate the goal of providing economic incentives to creators. So, copyright says that a n infringing work does not have to be an exact copy – it only has to be substantially similar. That’s one source of murkiness in the test.

On the other side, we also say that copyright cannot protect ideas; instead, it only protects expressions. So someone can copy ideas without being infringing. But the line between what is an idea and what is expression is itself nearly impossible to nail down.

These two facets, Judge Hand was saying, create the vagueness and uncertainty that surround the infringement test. Take for example two cases that take two completely different approaches: Roth Greeting Cards v. United Card and Satava v. Lowry.

Roth involved two greeting card makers. Roth claimed that United had copied a number of its cards. The short statements on the front and inside of the cards were virtually the same, as was their general placement. The art work was different (generally a cartoonish character under the words on the front of the card). In addressing the improper appropriation element, the court did not try to make a detailed determination of what was protected as expression and what was idea. Note that the words themselves were just phrases or sentences that were too short by themselves to receive copyright protection. It was the selection and arrangement that yielded the originality sufficient for copyright protection.

It appears to us that in total concept and feel the cards of United are the same as the copyrighted cards of Roth. With the possible exception of one United card (exhibit 6), the characters depicted in the art work, the mood they portrayed, the combination of art work conveying a particular mood with a particular message, and the arrangement of the words on the greeting card are substantially the same as in Roth‘s cards. In several instances the lettering is also very similar.

It is true, as the trial court found, that each of United‘s cards employed art work somewhat different from that used in the corresponding Roth cards. However, “The test of infringement is whether the work is recognizable by an ordinary observer as having been taken from the copyrighted source.”

The remarkable similarity between the Roth and United cards in issue (with the possible exception of exhibits 5 and 6) is apparent to even a casual observer. For example, one Roth card (exhibit 9) has, on its front, a colored drawing of a cute moppet suppressing a smile and, on the in- side, the words “i wuv you.” With the exception of minor variations in color and style, defendant‘s card (exhibit 10) is identical. Likewise, Roth‘s card entitled “I miss you already,” depicts a forlorn boy sitting on a curb weeping, with an inside message reading “… and You Haven‘t even Left …” (exhibit 7), is closely paralleled by United‘s card with the same caption, showing a forlorn and weeping man, and with the identical inside message (exhibit 8).

In contrast to the overall impression approach taken by the court in Roth, the court in Satava v. Lowry took a very detailed-oriented approach to the evaluation under the improper appropriation element.

Satava involved two sculptors who made glass sculptures that resemble jellyfish – brightly colored glass inside a cylinder of clear glass. Here the court took great pains to determine what was merely an idea first and then excluded any similarities of ideas from the substantial similarity analysis.

Satava's glass sculpture

Satava’s glass sculpture

The originality requirement mandates that objective “facts” and ideas are not copyrightable. Similarly, expressions that are standard, stock, or common to a particular subject matter or medium are not protectable under copyright law.

It follows from these principles that no copyright protection may be afforded to the idea of producing a glass-in-glass jellyfish sculpture or to elements of expression that naturally follow from the idea of such a sculpture. Satava may not prevent others from copying aspects of his sculptures resulting from either jellyfish physiology or from their depiction in the glass-in-glass medium.

Satava may not prevent others from depicting jellyfish with tendril-like tentacles or rounded bells, because many jellyfish possess those body parts. He may not prevent others from depicting jellyfish in bright colors, because many jellyfish are brightly colored. He may not prevent others from depicting jellyfish swimming vertically, because jellyfish swim vertically in nature and often are depicted swimming vertically.

Satava may not prevent others from depicting jellyfish within a clear outer layer of glass, because clear glass is the most appropriate setting for an aquatic animal. He may not prevent others from depicting jellyfish “almost filling the entire volume” of the outer glass shroud, because such proportion is standard in glass-in-glass sculpture. And he may not pre- vent others from tapering the shape of their shrouds, because that shape is standard in glass-in-glass sculpture.

Lowry's glass sculpture

Lowry’s glass sculpture

Satava‘s glass-in-glass jellyfish sculptures, though beautiful, combine several unprotectable ideas and standard elements. These elements are part of the public domain. They are the common property of all, and Satava may not use copyright law to seize them for his exclusive use.

It is true, of course, that a combination of unprotectable elements may qualify for copyright protection. But it is not true that any combination of unprotectable elements automatically qualifies for copyright protection. Our case law suggests, and we hold today, that a combination of unprotectable elements is eligible for copyright protection only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.

The combination of unprotectable elements in Satava‘s sculpture falls short of this standard. The selection of the clear glass, oblong shroud, bright colors, proportion, vertical orientation, and stereotyped jellyfish form, considered together, lacks the quantum of originality needed to merit copyright protection. These elements are so common- place in glass-in-glass sculpture and so typical of jellyfish physiology that to recognize copyright protection in their combination effectively would give Satava a monopoly on lifelike glass-in-glass sculptures of single jellyfish with vertical tentacles. Because the quantum of originality Satava added in combining these standard and stereotyped elements must be considered “trivial” under our case law, Satava cannot prevent other artists from combining them.

Note that the court did not say that Satava had no copyright in his sculptures; rather, the court said he did not have copyright protection in that which Lowry copied.

We do not mean to suggest that Satava has added nothing copyrightable to his jellyfish sculptures. He has made some copyrightable contributions: the distinctive curls of particular tendrils; the arrangement of certain hues; the unique shape of jellyfishes‘ bells. To the extent that these and other artistic choices were not governed by jellyfish physiology or the glass-in-glass medium, they are original elements that Satava theoretically may protect through copyright law. Satava‘s copyright on these original elements (or their combination) is “thin,” however, comprising no more than his original contribution to ideas already in the public domain. Stated another way, Satava may prevent others from copying the original features he contributed, but he may not prevent others from copying elements of expression that nature displays for all observers, or that the glass-in-glass medium suggests to all sculptors. Satava possesses a thin copyright that protects against only virtually identical copying.

What is of note is that both cases would have come out differently had they used the approach taken by the other. If the Roth court had taken a detail-oriented approach and eliminated all those aspects of the selection and arrangement that are common to most all greeting cards, what might be called functionality-driven ideas, then there would have been nothing left under copyright protection that was copied by United Cards.  Conversely, if the Satava court had merely asked whether the two sculptors works shared the same total concept and feel, the court would have concluded that they did.

Improper Appropriation – The Analysis

It basically boils down to two determinations:

  • What is protected expression and not unprotected idea?
  • Is there substantially similarity between the allegedly infringing work and the expression of the copyrighted work?

Idea/Expression Dichotomy

We talked about the idea/expression dichotomy way back in class 3 when we talked about the Nichols case. We can look at it from two directions. If we take recognized expression, let’s say a novel. Then we start to create greater and greater levels of abstractions from that expression. At some point of abstraction, it will become idea not expression. Taken from the other direction, we can take an idea and start adding more and more details. At some point it will become expression. Of course, where that line is, no one knows.

The quoted portions of the Satava case above are an example of a court looking at the idea/expression dichotomy.

Substantial Similarity

You’ll note that we ran into the term “substantial similarity” last week when we were talking about the copying element. One of the most common ways to prove copying was to do so by inference: showing the defendant had access to the copyright protected work and showing that the allegedly infringing work was substantially similar. From those circumstances, a judge or jury could conclude that copying had occurred.

We see the same words in the improper appropriation analysis, but the test is different. This is one of the frequent sources of confusion. In the copying analysis, we look to dissect the two works as experts would and then ask how similar they are, and we are not concerned about which parts of the copyright protected work are actually protected by copyright.

In contrast, under the improper appropriation analysis, we ask whether certain parts of the two works would be considered substantially similar to an ordinary observer. In Arnstein v. Porter, the court said that the ordinary observer was a lay person. Basically, your average person off the street. However, that was refined, or perhaps clarified, in Dawson v. Hinshaw.

Dawson v. Hinson involved to composers of spirituals, with Dawson accusing Hinshaw Music, among others, of having copied his arrangement of “Ezekial Saw De Wheel.” (The music is linked here.)

As a part of the improper appropriation test, the court said that the ordinary observer should be one who was the intended audience of the work. The court explained how this was what Arnstein case actually stood for, despite its use of the “lay person” language, and how this best served the incentive theory underlying copyright.

Arnstein v. Porter provides the source of modern theory regarding the ordinary observer test. Arnstein involved the alleged infringement of a popular musical composition. Writing for the panel, Judge Jerome Frank first explained that “the plaintiff‘s legally protected interest is not, as such, his reputation as a musician but his interest in the potential financial returns from his compositions which derive from the lay public‘s approbation.” This initial observation gave force to the recognized purpose of the copyright laws of providing creators with a financial incentive to create for the ultimate benefit of the public.

Consistent with its economic incentive view of copyright law, the Arnstein court concluded that “the question, therefore, is whether defendant took from plaintiff‘s works so much of what is pleasing to the ears of lay listeners, who comprise the audience for whom such popular music is composed, that defendant wrongfully appropriated something which belongs to plaintiff.” Thus, under Arnstein, a court should look to the reaction of “lay listeners,” because they comprise the audience of the plaintiff‘s work. The lay listener‘s reaction is relevant because it gauges the effect of the defendant‘s work on the plaintiff‘s market.

Although Arnstein established a sound foundation for the appeal to audience reaction, its reference to “lay listeners” may have fostered the development of a rule that has come to be stated too broadly. Under the facts before it, with a popular composition at issue, the Arnstein court appropriately perceived “lay listeners” and the works‘ “audience” to be the same. However, under Arnstein‘s sound logic, the lay listeners are relevant only because they comprise the relevant audience. Although Arnstein does not address the question directly, we read the case‘s logic to require that where the intended audience is significantly more specialized than the pool of lay listeners, the reaction of the intended audience would be the relevant inquiry. In light of the copyright law‘s purpose of protecting a creator‘s market, we think it sensible to embrace Arnstein‘s command that the ultimate comparison of the works at issue be oriented towards the works‘ intended audience.

To further confuse the matter, how you determine whether it is substantially similar to the intended audience often comes down to the testimony of experts. So you have experts testifying about the technical similarities of the entire work in the first element (copying) while you have experts testifying about what a certain group of people would think about the similarity of certain elements of the works. No room for confusion there at all…

…and that does not even start to take into account when you enter areas like computer software. Read on if you dare – Computer Associates v. Altai.

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Copyright Class 4 – Superstars Special Edition

Today I’m going to take a slight detour with the class. The live class at the law school is canceled today because I am in Colorado Springs speaking at the Superstars Writing Seminar. So what I thought I would do today is share with you some of the thoughts that I am including in my talk at the seminar. My session is basically a primer on copyright and other intellectual property law for authors. For class today, I am going to focus on two of the most important parts of my talk: “a bundle of sticks” and “can I?”

A Bundle of Sticks

Understanding this metaphor is important to making proper business decisions regarding one of your primary assets as a writer – your copyright.

In law, we use the metaphor of a bundle of sticks to describe property. Typically, a lay person (i.e. someone who is not trained as a lawyer) would think that property is a thing – a ring, a car, or a house.  For a lawyer, property is an intangible set of rights. The thing – the ring, the car, the house – are the subjects of property. They are the things to which the rights attach.

A bundle of sticks is the metaphor we use to describe that intangible set of rights. We describe it as a bundle of sticks rather than saying it is a single stick because each of those sticks can be owned by different people. For example, if someone owns an easement right of way over your land, then ownership is split. You own most of the sticks in the bundle, but the owner of the easement owns a few sticks in that bundle.

How does this relate to copyright?

Copyright is a type of property. Instead of being an intangible set of rights that attach to a physical object, copyright is an intangible set of rights that attach to an intangible object – the work of authorship. So copyright can also be thought of as a bundle of sticks.

Why is understanding this so important for writers?

You can (and often should) transfer the sticks in that bundle separately.  In fact, one of the most important parts of negotiating any contract is looking at which sticks are transferred and making certain that you are not transferring more sticks than what you are being paid for. If someone is paying you a value that is appropriate for book rights in North America but you are granting that person all of the sticks in the bundle, all of the copyright, then you are giving away value.

Can I?

I frequently get questions from authors along the lines of “Can I do this”? An example would be “Can I use song lyrics in my short story?”

That is a question that seems straightforward but I maintain that it is really three questions. Or at least, writers should think about it as three different questions.  Here are the three questions for traditional publishing:

  • What will a court of law determine?
  • Will I have to defend a suit by a copyright holder?
  • How will an editor/publisher react to the possibility of a lawsuit?

For indie publishing, the third question is slightly different:

  • What will a court of law determine?
  • Will I have to defend a suit by a copyright holder?
  • How will a retailer react to a take-down notice from the rights holder?

The first question is what both the writer and the lawyer typically think of first. It is important and it impacts the other question, but it may not be what drives your ultimate decision.

The second question (“Will I have to defend a suit by a copyright holder?”) may drive your decision because having to litigate a lawsuit may cost you a lot of money and time, even if you ultimately win the case in slam dunk fashion. You have to ask yourself if this particular part of your story, the element that may get you sued, is worth the risk of that cost. What is your purpose? Is it to make a living? Is it to make a point that requires the questionable content?

The third question (“How will an editor/publisher react to the possibility of a lawsuit?”) keys on your ability to get past a gatekeeper in traditional publisher. If you include something in your story or novel that scares an editor or publisher about the possibility of getting sued, then that may make the editor reject your work in favor of a work of similar quality that does not carry the same risk. For indie publishers, you have to worry about a retailer (e.g. Amazon) pulling your book if they are threatened by a rights holder.

Thus, questions two and three quite often will dictate your choice even without having a full answer to the first question or even when the answer to the first question is that you would win the lawsuit.

I’ve discussed this in detail previously, a discussion you can find here.

So, how might this relate to what we have talked about in this class so far? Recall what we talked about last week

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.

So, you’ve written a book that has a plot similar to another book. Can you do that? Well, we could do the analysis described by Judge Hand. We could apply the idea/expression and try to answer the question of what a court would conclude. But we should also consider the likelihood we might be sued and whether an editor we might submit our book to might not want to publish our book because it is too similar to the other book.

The answers to the second and third questions may be more influential in your decision-making than the answer to the first question. Now, the questions are all related. The closer the call is on the first question, the more certain we are that the action is infringing, the more likely we will reach negative answers on questions two and three.

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Copyright Class 3 – Copyright Protection and Ideas

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.

We read three cases for today: Baker v. Selden, Nichols v. Universal Pictures Corp., and Kregos v. Associate Press.

Baker v. Selden

Slightly more interesting than baseball

Slightly more interesting than baseball

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.

Not going to risk an attempt at humor here

Not going to risk an attempt at humor here

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 went there.

But beer does help.

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.

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