Over the years, we've noted time and time again that people seem to think that if a book, movie or TV show comes out that has some basic similarities to a project they worked on, it simply must be copyright infringement. But, of course, copyright is supposed to apply to specific expression, rather than mere ideas. As we've noted, over the years, the line on this is unfortunately blurry, but for some cases, it's pretty clear that there's no infringement at all. Such is the case in a legal fight over a Disney movie (direct to video, of course) about a dog who helps Santa Claus. Three guys came up with a similar idea, which they wrote as a short story (it took three guys to come up with such an idea?) and then decided that the movie must have infringed on their copyright. It did not. I'll let THREsq's summary explain:
The court acknowledged that the short story and the Disney movies had some elements in common: they all feature a threat to Christmas and a talking dog; all feature a dog named Paws, Santa Paws or Puppy Paws; they all have magical icicles; etc. There also is some similar dialogue. However, "apart from these abstract similarities, the remaining elements of the plaintiffs' short story and defendants' movies are substantially dissimilar," the court notes. "Furthermore, most of the aforementioned similarities between plaintiffs' short story and defendants' works are not protected by copyright law."
While we can point to cases like this and say that the system is working, just the fact that such cases so often get filed shows a real problem. We've so built up this perception of copyright-over-all and "ownership society" that people really do think that anyone having the same idea as them must have infringed -- and are so sure of it that they're willing to go to court. That's a symptom of a much bigger problem with the system and the way people view it today.
Despite this impeccable pedigree, the Hurd is being used today by only a tiny fraction of the hundreds of millions running Linux -- further evidence that it's really not the idea, but the execution that counts.
We've talked a lot in the past about the "idea/expression dichotomy." This is an important concept in copyright law that says you can only copyright the specific expression, and not the idea. This is supposed to protect people from getting accused of copyright infringement for basically making something similar to what someone else made. Unfortunately, as we've been noting with dismay over the past few years, the idea that there's some bright line between "idea" and "expression" has been slowly fading away, and courts are, increasingly, effectively wiping out the distinction. In the US, we've seen this with the ridiculous case between a photographer, David LaChapelle, and the singer Rihanna, because some of her videos were clear homages to his photographs. The expression was entirely different, but the judge didn't think so, and Rihanna ended up having to pay up.
Over in the UK, though, we have an even more ridiculous ruling, as pointed out on Boing Boing, where a judge has ruled that a photograph using a similar idea, but totally different composition is infringement. You can see the two photographs here:
As you can tell, the expression is totally different. Obviously, the idea is quite similar, but ideas aren't supposed to be protected. You can read the full ruling here, in which the court seems persuaded by the fact that the original photographer had to do some Photoshopping to the image. Now, it's true that European copyright laws are much more open to "sweat of the brow" arguments for copyright (which is not the case in the US), but even so, this ruling is ridiculous and troubling. The court even admits that the basic elements of the photograph (Big Ben, Parliament, London bus) are pretty common. It also admits that highlighting an object in color on a black and white background is pretty common. But it still finds that this is infringing.
I have not found this to be an easy question but I have decided that the defendants' work does reproduce a substantial part of the claimant's artistic work. In the end the issue turns on a qualitative assessment of the reproduced elements. The elements which have been reproduced are a substantial part of the claimant's work because, despite the absence of some important compositional elements, they still include the key combination of what I have called the visual contrast features with the basic composition of the scene itself. It is that combination which makes Mr Fielder's image visually interesting. It is not just another photograph of cliched London icons.
What troubles me here is that this seems to turn the judge into an art critic in order to determine how the different pieces are put together and what counts as expression vs. idea, and what parts are "copied." Perhaps even more troubling is the following sentence:
Mr Davis submitted that a finding of infringement in this case would give the claimant a monopoly which was unwarranted. He uses the word "monopoly" in a pejorative sense but it does not help. All intellectual property rights are a form of monopoly, properly circumscribed and controlled by the law. In any case I do not accept that a finding for the claimant in this case is unwarranted.
While he's right that all intellectual property rights are a form of monopoly, the question here is whether or not this is an appropriate monopoly. The reason Davis pointed out that this was a problem was because, as the court admitted earlier, the fact is that this would be creating a monopoly on commonly used photographic elements. That's the problem. Either way, it's yet another example of copyright law being used to lock up culture.
We were just talking about the extremely fuzzy border between idea and expression, and how that leads to problems and the stifling of creativity. Well, how about a similar discussion between "inspiration" and copying? We hear this all the time. Whenever we show widely accepted pieces of art that are actually quite similar to something earlier, defenders of copyright insist that this is fine, because it was just "inspired" by the original, rather than a direct copy. But where's the border between inspiration and copying?
Take this case, which was first called to our attention by Stephan Kinsella, in which photographer Janine Gordon sued photographer Ryan McGinley claiming that 150 of McGinley's images were "substantially based" on her own photos. The site PetaPixel (linked above) has posted some of the "evidence," which should immediately make it clear how ridiculous this lawsuit is:
Honestly, it's difficult for me to even say that McGinley's are "inspired" by Gordon's, let alone copies. Yes, some of them cover similar subject matter, but is Gordon seriously claiming that only she has the right to show "a couple kissing passionately" if the "girl on the right has long silky straight brown hair and her eyes are closed"? Separately, in that one, she highlights that the girl has high cheekbones, but I don't quite see how the high cheekbones are part of Gordon's copyright at all. And the one of the guys jumping? She's really claiming a copyright on the fact that arms are curving, and the legs are in a v shape? I don't know if Gordon has looked at people's legs in a while, but they're all pretty much "in a v-shape" quite a lot.
Gordon is apparently seeking $30,000 per infringement, which is the maximum statutory rate... though, to be honest, I'm surprised she isn't going for the full $150,000 by claiming these are "willful" infringement. Either way, it's yet another example of how the state of "ownership culture" today leads people to think that they can lock up ideas, and anyone who does anything even remotely (perhaps very, very remotely) similar, somehow must owe them money.
It's a sad statement on the state of culture today.
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.
About a month ago, the folks at Planet Money did a nice podcast on the economics of Groupon. There's no doubt that there's a bit of a "coupon" bubble going on these days, with tons of companies crowding into the space, and (as the Podcast notes) a bunch of ex-Wall St. types jumping into the space with talk of creating derivatives on coupons/deals. At the same time, plenty of people have mocked Groupon and insisted that its model isn't sustainable and others can easily come in and kill Groupon. In fact, some of the Wall St. guys who stayed on Wall St. are saying that Groupon's value shouldn't be that high because anyone with a phone can copy them.
Lots of people are discussing Felix Salmon's excellent analysis of the economics of Groupon, which is really more about the fact that Groupon has dominated the space because it executes well. That is, it's not about the idea, it's about the execution. The fact that it has remained dominant despite so many copycats shows that just copying isn't enough. This doesn't mean that Groupon will always be the best at executing (in fact, I doubt it will be). But it's not so simple as just coming in and copying.
This is an issue that comes up all the time when we talk about business and intellectual property. People who haven't built up businesses like this assume that all you need is the idea -- and if an idea can be copied, then the company can't succeed. But that ignores just how important the execution element is. Salmon talks about how hard Groupon works to make sure its advertisers are happy with the results, to a level beyond most of its competitors. However, I think there's another element of Groupon's execution that hasn't received nearly enough attention: how enjoyable it makes the whole thing for consumers.
Groupon employs a bunch of writers who work hard to make sure all of the deals are compelling, enjoyable and fun. It always amazes me how much people underestimate the value of the quality of the writing in Groupon's offers. However, where it really struck me was a few months back, when I was researching some newer competitors to Groupon -- in particular, newspapers that were offering deals directly to compete with Groupon. In theory, newspapers should be able to absolutely destroy Groupon. If you're just standing on the mountain looking down, and seeing who has the advantages here, it's clearly the newspapers. Newspapers already rely on local advertising and deals, and have established long-term relationships in the market. On top of that, newspapers employ a ton of (mostly) high quality writers as well, so they should be able to create similarly compelling content.
And yet, when I was looking at various newspaper Groupon clones, what struck me was how boring and dull their offers were. Even if the deals themselves were comparable (and they often weren't), they just weren't that interesting or compelling to read. And that's because the newspapers -- like the Wall St. analyst above -- are engaging in cargo cult copying, where they think that all that matters is copying the superficial idea -- while missing the secret sauce that goes into the less obvious execution.
As a final aside, the quality of Groupon's content highlights another key point that we've raised many times before: how "infinite goods" like content make scarce goods more valuable. In this case, the "content" created by Groupon's writers (and, yes, this is also an example of how advertising is content) is valuable. But no one's selling the "content." What Groupon is doing is using that good content to make the scarcity of the deals more valuable, making more people willing to buy them.
In the end, I will admit that I have my doubts about the overall sustainability of Groupon itself, but it's not because "the idea" is easily copyable. I'm just not convinced that Groupon can continue to execute as well, and some aspects of what it's offering have some elements of a fad written all over them. But claiming that the company is overvalued because the "idea" is too easy makes little sense.
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?
We'd heard a while back a guy named Terence Dunn who had sued Dreamworks, claiming that he had come up with the concept of "Kung Fu Panda," which Dreamworks made into a massively successful film. We hadn't written about it at the time, because for pretty much every big successful film or book, someone comes out of the woodwork to claim some sort of ownership stake. However, now we've got a second such lawsuit. THREsq reports on a guy named Jayme Gordon, who actually seems to have a somewhat stronger claim, in that he actually created a project, registered with the US Copyright Office, called "Kung Fu Panda Power" whose characters have some similarities to the movie's characters. Assuming the drawings in that article are accurate, it would seem that he has a much stronger claim that the usual "that movie took my idea!" claim.
Still, there are two things to consider. Is the idea of a Panda that does Kung Fu really so original? After all, there seem to be multiple people who came up with it, and it seems like a pretty straightforward thought process. As a commenter on the linked article above notes:
Combining Kung Fu and a Panda is not a terribly difficult idea to come up with. You say you want a Kung Fu movie, but with animals? Okay, where does Kung Fu come from? China? Oh, okay. Well, what kinda animals live in China? Well, there's the Panda, of course. Bingo. Let's make it.
And, the second point is one we've pointed out before: there's a big difference between an idea and executing on the idea. Just having a general idea that many others might have as well shouldn't give you the right to step in and collect some of the profits from those who actually took the risk and executed successfully on the idea.
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).
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.