Copyright law is supposed to have an idea/expression dichotomy, in which the copyright only covers the specific expression, and not the idea. We're often told this when we worry about the expansion of copyright law being used to block out ideas. And yet, as we've explained in the past, it's not clear there's any real idea/expression dichotomy when it comes to copyright. That's because, if a judge doesn't like something, he or she will often come up with some convoluted explanation for how the "expression" covers the basic idea.
And, of course, once people begin to realize that there's no real idea/expression dichotomy, lawsuits begin to show up pushing the boundaries even further. Take for example, this lawsuit, in which a novelty gift firm called Cellrderm has sued Microsoft and its ad agency, CP&B, for "copying" some of its commercials. You can see the four commercial below, showing the (terribly produced) Cellrderm commercials, followed by the supposedly "infringing" Microsoft version:
Cellerdrm, Bedroom ad:
Microsoft, Bedroom ad:
Cellerdrm, Urinal ad:
Microsoft, Urinal ad:
If you watch the ads, they may have (sorta, kinda) similar ideas, but the expression is way, way different in both cases. And yet... Cellrderm is trying to claim that it actually copies the expression:
The Microsoft Commercials copy both the sequence of events and the character interplay found in the Cellrderm Commercials.... The Microsoft Commercials also copy other copyrightable expression, including but not limited to clothing, gestures, character appearance, camera angles, and other visual elements from the Cellrderm Commercials.
Yes, you read that right. They're complaining that the clothing and gestures in these commercials was copyrightable. One hopes that a judge will tell Cellrderm to stick to gag gifts, and get out of the gag lawsuit business.
We're always told by copyright system defenders that there's an "idea/expression dichotomy" in copyright law that prevents copyright from really getting in the way of free speech. This is supposed to mean that it's perfectly fine to copy the idea, so long as you don't copy the fixed expression of that idea. In practice, this gets a lot trickier, with courts seeming to find all sorts of copied "ideas" infringing, even if they don't copy specific expression. So where is the line?
The folks at Chicago Magazine are apparently quite upset and are calling in the lawyers after discovering that a magazine in a small Russian city, called Krasnodar, copied the idea for the cover of a recent issue of the local magazine. There's no doubt that the idea was copied:
The guy behind the Russian magazine (who happens to be an American from Boston) seems perfectly willing to admit that he copied the idea, noting:
"This is a tempest in a teapot if I've ever seen one. All creative inspiration is derivative. Some more so than others."
Chicago Magazine seems to think it's a bit more serious, and claim that this is a violation of its copyright:
There is a difference between a work that is inspired by another and one that is copied. Copyright laws are written to enforce that difference, and our lawyers are sending Krasnodar magazine a stern note.
So, where is the line? As far as I can tell, the specific expression here is different. The idea is obviously copied, but the execution is different. Is it infringement? And, if so, where is that line between idea and expression?
For many years we've pointed out that ideas are easy but execution is hard. Unfortunately, as a society, we seem to romanticize and celebrate the idea over the execution -- and our policies, such as patent policies -- codify that into law. This is unfortunate -- especially for anyone who has actually executed and built a real business, since you quickly learn that the original idea is quite frequently meaningless by the time you build a successful business. Earlier this year, we noted that Dilbert creator Scott Adams had jumped on board the whole "ideas vs. execution" dichotomy, and he's apparently still working that theme.
In a recent blog post, he not only reiterated the "ideas are worthless, execution is everything" claim but tried to take it further by suggesting (as an idea) that it might help if there was a business to bring ideas together with people to execute. Now, of course, this is just an idea and, according to Adams' own rules, it's pretty worthless. My guess is that if people tried to execute on this particular idea, they'd find that it didn't work quite the way Adams' predicts (which is sort of the point). The basic idea is that people with ideas would tape themselves in a video talking about the idea and then others who might provide related services -- such as management, capital, legal, sales, etc. -- could join up. If a "complete team" was put together via this system, then they could go execute. The concept is to remove some of the inefficiency in executing.
In my imagined future, you start by making a home video of yourself pitching your idea, just as you would to an investor. You upload your video, along with a detailed description of your idea, to a web site where other entrepreneurs around the world are doing the same thing. But instead of simply soliciting funding, you solicit an entire team, based on whatever skills your business requires. The key to making this work is that no one quits his existing job, or provides funding, until all of the resources for the idea are lined up. The main function of the system is making sure everyone's conditions for participation have been met before any risks are taken.
Now imagine that the legal contracts for your new business partners are based on standardized agreements that have been created by the online business to be fair to both sides. There's no wrangling about the legal details. All you need to agree on are the "fill in the blank" stuff, such as who does what, and for what equity or salary. Likewise, the funding agreements are standardized.
As the entrepreneur, you might have a hundred people vying for the job of marketing for your new company. Each person would submit a resume, perhaps some text on how they would approach this specific job, and a minimum compensation requirement. The entrepreneur might choose a marketing expert with weaker experience to keep payroll low, which might in turn cause another potential team member to back out if he thinks the marketing person is too weak for the job. This process of adding and subtracting potential team members would repeat until everyone was happy with the contribution and compensation of everyone else. And during the process, all potential team members could communicate with each other to negotiate deals and refine the idea.
Of course, to some extent, things like this have already been tried. There are incubators out there. There are standard legal forms. There are all sorts of entrepreneurial groups that try to bring such people together. But, for the most part, they don't seem to work all that well -- and a big part of the reason for that is the basic worthlessness of ideas. For an idea to really be executed, you don't just need the ten pieces that Adams lists out -- you need a real champion. Ask most angel investors and venture capitalists what they invest in, and it's not the idea but, quite frequently, it's the team and their overall ability to execute. Working on a startup with cofounders is, in many ways, similar to a marriage. Making sure those people can actually execute well together is a key part of it -- and this setup seems to minimize that, again focusing on the "idea" as the central focal point.
In reality, however, if you're so focused on the idea, when the market changes or reality sets in, the team is less able to adjust and to change and to adapt. Adams' basic premise is correct: ideas are worthless compared to execution but the response to that is aiding with execution in a way that lets people adapt quickly over time, rather than still setting up the key "idea" as the focal point.
In the end, I tend to think Adams' idea for "monetizing" ideas is about as likely to work as the following idea from another well-known comic creator, Randall Munroe, whose recent xkcd covers the same topic from a slightly different angle:
There's no doubt that there are some similarities between Disturbia and Rear Window (which was also, famously, made into a Hitchcock film in the 50s... with a license). It seems like pretty much every review of Disturbia pointed that out. But, there's a difference between being similar and being a copy. Even if it's based on the same idea, that doesn't mean it's copying any of the protectable expression from the original. And, that's what the judge found in this case:
"The main plots are similar only at a high, unprotectible level of generality," New York District Court judge Laura Taylor Swan wrote in her ruling that dismissed the complaint.
"Where 'Disturbia' is rife with sub-plots, the short story has none. The setting and mood of the short story are static and tense, whereas the setting and mood of 'Disturbia' are more dynamic and peppered with humor and teen romance," the judge added.
While this is appears to be a good ruling that understands these issues, it's still a bit troubling that this whole setup often turns judges into critics, concerning the level of similarities. Last year, of course, in a similar case, a court banned the publication of a book that was an unofficial sequel to Catcher in the Rye. It seems clear that such a situation also may have used similar ideas and plot points -- but did not copy the specific expression. Unfortunately, the judge-as-critic in that case decided otherwise, leading the US court system to ban a book (something that's not supposed to happen).
People really have an incredible ability to assume that only they could possibly have a very common idea. Lots of people have pointed out that James Cameron's Avatar seems similar to all sorts of stories. In fact, the site io9 put together a giant list of books and movies that some claimed were copied by Cameron. And, of course, we've already mentioned two separate lawsuits. Well, now we can add a third one to the list, and it has just as much a chance to succeed as the others. In this case, it's made even more ridiculous by the fact that the book in question was written after Cameron was already working on Avatar.
In most of the cases with these types of lawsuits, it seems like those suing are really just filing what they likely know is a bogus lawsuit to get publicity for their book/movie/etc. (which is why we're not naming the book in this case). But, it does highlight an important point that we've discussed plenty of times in the past: lots of people have ideas that are similar. Ideas, by themselves, are neither unique nor protectable. It's the execution or (within the copyright realm) the expression that is unique. Yet, too many people overvalue the idea and assume that only they could possibly have had it. The idea behind the story of Avatar is pretty simplistic and common, really. It's been done plenty of times before. The reason the movie is getting so much attention is because of the execution.
You may remember that last year, before he died, JD Salinger sued the author of an unofficial "sequel" to The Catcher in the Rye, called Coming Through the Rye, which had already been published overseas, but was slated for publication in the US. Pretty much everyone agrees that this unofficial sequel isn't particularly good, and it likely would have quickly faded into obscurity if Salinger hadn't brought the lawsuit. Instead, however, a court banned the publication of the book, claiming it was copyright infringement.
This is massively troubling if you believe in the First Amendment. Just think about it for a second: this is a book that was published around the world, but is banned in the US -- the supposed bastion of freedom of speech and expression.
The problem is that, despite the fact that copyright is supposed to recognize the difference between the idea and the expression (and only protect the specific expression), lately the courts have been blurring that distinction massively. If you honestly believe that copyright only protects the expression -- as the courts have said -- then someone creating a totally different expression should not... no, cannot be barred. But, the reality is that many people -- including some judges -- don't seem to recognize the difference between an idea and an expression, and what copyright is supposed to cover.
Anyway, Esahc points us to the news that the lawsuit has been sent back to the district court by the appeals court, to determine whether or not the publication of the unauthorized sequel would cause any "harm" to the original publication. However, the reasoning here is a bit surprising. The court did not find any problems with the copyright infringement ruling -- and, in fact, claimed that it thought Salinger (and his estate) would likely prevail on that point if the case was appealed.
Instead, the Appeals Court simply questioned whether or not the injunction was the proper response to the infringement, and told the lower court to apply the rules the Supreme Court set out in the MercExchange ruling four years ago. This is a bit surprising, since MercExchange focused on whether or not injunctions were the proper response in patent cases, not necessarily copyright -- but it does appear that various courts have been trying to apply MercExchange to other types of cases. As such, the test that the court needs to decide is whether or not Salinger's estate would suffer "irreparable harm," if the publication of the unauthorized sequel went forward. That might be a very difficult standard to live up to, as I can't see any harm at all caused by the sequel (in fact, I would imagine the opposite would occur, in that it would drive more interest in the older book).
So what might that mean? If the MercExchange patent rulings are any indication, if the courts find that the unauthorized sequel did infringe on copyrights, it could require the author and his publisher to pay a set fee to the Salinger estate, and still allow the publication -- creating a de facto compulsory license. Actually, the book No Law, has argued that just such a result would actually bring copyright law much more in line with the First Amendment -- allowing people to be free to express themselves, but requiring they pay up if they infringe. However, it would represent a pretty major shift in copyright law. You can read the full decision below -- and here's a press release from the publisher, hyping up the ruling much more than it deserves. The Salinger estate will almost certainly push for the injunction to be put back in place, and we'll have to see what the court decides, before we know if this book ever gets published in the US. But just the fact that it's saying the MercExchange rules should be used for copyright infringements is a big, big deal.
The more successful you are, the more likely you are to get sued over some bogus claim of copyright infringement, it seems. Having just settled a silly lawsuit from Joe Satriani, it seems that others are stepping forward to see if Coldplay will settle with them. This latest one is seriously ridiculous. Peter Friedman has the details of a guy who is suing Coldplay for copyright infringement, because in a recent video they used the idea of interacting with things happening on a chalkboard. Seriously. Check the two videos out:
The only thing in common is the concept of interacting with chalk on a wall. Even the actual themes of the video are entirely different. And, of course, there have been many other videos predating this other guy's.
My guess is that the guy suing knows all of this (or had a lawyer explain it to him), but he's still suing for one reason: because it may get his video and his name some attention (which is why we're not naming him directly in this post). These are the types of lawsuits for which there should be serious sanctions against those bringing them. It's almost certainly a bogus lawsuit. Copyright doesn't cover an idea, and the idea itself wasn't even that original. The videos are entirely different. This has a high likelihood of simply being abuse of copyright law and the court system because some unknown musician wants extra attention.
Copyright system defenders often trot out the commonly accepted wisdom that copyright does not protect "ideas" and that there's an important "idea/expression" dichotomy, where it's only the specific expression that's protected, not the ideas. However, the reality is that both individuals and courts seem to have a pretty difficult time distinguishing between the two, and always have. While perhaps there's some platonic ideal where it's easy to tell the difference between an idea and the expression of that idea, it's much harder in practice. Recent studies have shown how notoriously difficult this distinction is in practice, leading to serious questions about how copyright violates the First Amendment.
The latest example of this is the ruling banning the publication of the "modern" sequel to The Catcher in the Rye. If there really were a distinction between the idea and the expression, then a sequel would never be seen as infringing, unless it used significant text directly from the original. Yet, in this case, the ban on publication is making some wonder where that mythical idea/expression dichotomy really exists:
First, it exposes the lie that is perpetuated in the legal community that copyright laws don't protect "ideas", but rather only the "concrete expression" of ideas. In practicality, this statement is pure nonsense as evidenced by the fact that a copyrighted work seals in monopoly protections of "characters" and "derivative works" - even if such derivative works don't include any actual "copying" of cloned material from the underlying work.
For instance, if I feel that I have a far better script or storyline that utilizes the character of James Bond, but without utilizing any previous cloned image from a Bond film and without copying previously used dialogue beyond a minimal instance of "My name is Bond...James Bond." or "Shaken...not stirred.", I still would not be able to create it, because Ian Flemming's estate and/or Sony Pictures, etc. has a monopoly over the IDEA of James Bond.
I would argue that by protecting "derivative" works, copyright effectively asserts control over ideas - except for those envisioned at the most abstract levels.
I'm sure we'll get angry comments from some of the copyright defenders who are always quick to chide, but I'm curious how they can use the so-called idea/expression dichotomy as a defense against a First Amendment violation, when that dichotomy doesn't really seem to exist. Copyright system defenders, for years, have relied on the whole "idea/expression" split to explain away how copyright law can be compatible with the First Amendment's insistence that "no law" may be passed that inhibits freedom of speech. If you realize that said split doesn't really exist (or, at the very least, is not enforced by the courts), you have a big, big constitutional problem.