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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    peter (profile), 3 Jul 2009 @ 9:48am

    Coward - your choice of character to illustrate the simplicity of the consequences of copyright in a character ironically enough undermines your point. James Bond belongs to Ian Fleming? Tell it to the courts that struggled over Danjac LLC v. Sony Corp.(http://reporter.blogs.com/files/0055781p.pdf), which was a lawsuit about whether the guy who wrote the first screenplay for a James Bond movie with Fleming had created a new "movie" Bond who was a different character than the one Fleming had already created (and arguably infringed in his later novels by using the "movie" Bond as the later "literary" Bond). As the court described it: "[T]his case arises out of an almost forty year dispute over the parentage and ownership of a cultural phenomenon: Bond. James Bond." The court did what courts like to do in cases that involve legal issues that are exceedingly difficult to resolve -- it decided it on a different legal issue, leaving the issue you think is so plain unresolved. But then, you do have a tendency to over-simplify. Get off this idea that the law treats real property and intellectual property the same because they are both "property." I went through this in response to you yesterday. http://www.techdirt.com/article.php?sid=20090702/0125045432#c689 And are you suggesting that the court that decided Sun Trust (which by no means is alone in recognizing that copyright restricts expression and therefore is in tension with the First Amendment) is expressing some sort of "purist's" view of free speech that can't accommodate the restriction on yelling "fire" in a crowded theater? Get real. Are you some sort of property purist who believes that you can do anything you want with your property (and therefore that nuisance law, zoning laws, and environmental laws -- just as a start) are unconstitutional? If so, you're the one expressing views with no legal basis.

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