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.