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
    Mike Housky, 3 Jul 2009 @ 4:56pm

    First Amendment

    I'm no fan of intellectual property law, but neither am I much impressed by the notion that the First Amendment guarantees the right of free expression. It doesn't say so. All it says is that Congress can't abridge our rights to free speech. Nine amendments down the page comes:

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

    ...which, in the absence of a prohibition elsewhere in the Constitution, places no restriction upon state and local restrictions upon speech, assembly, etc. That prohibition may exist, but it's not in the First Amendment.

    I like your observation that the line is not clearly drawn in the "dichotomy" between idea and expression. I find it difficult to imagine any argument that would persuade me that the James Bond character is not a concrete expression of the idea of a Cold War secret service agent. And, yet, you are offering--what--that James Bond in "Octopussy" is a concrete expression of some generalized idea of James Bond?

    It seems to me that the lines are rarely drawn clearly when it comes to the law, anyway. Isn't that why judges exist--to referee combat in the gray areas?

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