Is There Really An Idea/Expression Dichotomy In Copyright?

from the it's-difficult-to-see dept

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.

Filed Under: catcher in the rye, copyright, expression, first amendment, idea, jd salinger

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  1. identicon
    ASH, 3 Jul 2009 @ 6:24am

    Mike, let me reiterate the point made in post #1. You're often like someone who only reads what's on the medication bottle in his hand, without any concept that taking it could KILL YOU if you're also taking other medication that doesn't happen to be in your hand at the moment.

    Legal training is not so much about learning the law (which is easy--just memorization, yeah?), but rather learning how laws interact with each other (which is not--involving analysis, judgment, precedent, public policy, etc. etc.). In fact, if this were a medicine blog, you'd be committing pharmocological suicide with your posts nearly every day.

    For example, you look at a few cases involving the idea/expression dichotomy, and think that it's always this incredibly sketchy area of legal fiction. It's not--in fact, it's almost always INSANELY EASY to tell the difference between the two.

    "Strange visitor from another planet who poses as a human to save us from ourselves?" Sure, that's Superman, but it's also The Day The Earth Stood Still. An adventure story involving a farmboy, an old wizard, a pirate, a princess and an evil king? That's just about hundreds of children's fables, but it's also Star Wars. The ability to distinguish between the idea, and the expression of the idea, is not difficult at all.

    The reason that someone without any legal background might think that it's always difficult is that they're reading reported cases, which almost always come from the appellate level or above and so BY THEIR VERY NATURE are closely contested legal concepts. The overwhelming number of cases aren't even close to the line, don't make it to the appellate level and usually don't even make it to trial.

    I understand that you feel passionate about what you write, but the simple truth of it is that you usually understand just enough to get it completely wrong.

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