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
    Mockingbird, 4 Jul 2009 @ 10:38am

    James Bond

    In effect (though of course not in theory) the idea of James Bond was found copyrightable in the case of Metro-Goldwyn-Mayer, Inc. v. American Honda Motor Co., 900 F. Supp. 1287 (C.D. Calif., 1995). Honda was enjoined by the court from showing an advertisement for the Honda del Sol which featured
    a young, well-dressed couple in a Honda del Sol being chased by a high-tech helicopter. A grotesque villain with metal-encased arms jumps out of the helicopter onto the car's roof, threatening harm. With a flirtatious turn to his companion, the male driver deftly releases the Honda's detachable roof (which Defendants claim is the main feature allegedly highlighted by the commercial), sending the villain into space and effecting the couple's speedy get-away.
    The name "James Bond" nowhere occurred in the Honda ad, but on the basis of the features described above, the ad was found to infringe chase scenes in Bond films, and the Bond character, on this basis:
    (1) the theme, plot, and sequence both involve the idea of a handsome hero who, along with a beautiful woman, lead a grotesque villain on a high-speed chase, the male appears calm and unruffled, there are hints of romance between the male and female, and the protagonists escape with the aid of intelligence and gadgetry; (2) the settings both involve the idea of a high-speed chase with the villain in hot pursuit; (3) the mood and pace of both works are fast-paced and involve hi-tech effects, with loud, exciting horn music in the background; (4) both the James Bond and Honda commercial dialogues are laced with dry wit and subtle humor; (5) the characters of Bond and the Honda man are very similar in the way they look and act -- both heros are young, tuxedo-clad, British-looking men with beautiful women in tow and grotesque villains close at hand; moreover, both men exude uncanny calm under pressure, exhibit a dry sense of humor and wit, and are attracted to, and are attractive to, their female companions.
    and also on the basis of the following specific similarities:
    (1) In "The Spy Who Loved Me," James Bond is in a white sports car, a beautiful woman passenger at his side, driving away down a deserted road from some almost deadly adventure, when he is suddenly attacked by a chasing helicopter whose bullets he narrowly avoids by skillfully weaving the car down the road at high speed. At the beginning of the Honda commercial, the Honda man turns to his companion and says, "That wasn't so bad"; to which the woman replies, "Well, I wouldn't congratulate yourself quite yet" -- implying that they had just escaped some prior danger. Suddenly, a helicopter appears from out of nowhere and the adventure begins.
    (2) In "Dr. No.," the villain has metal hands. In the Honda commercial, the villain uses his metal-encased hands to cling onto the roof of the car after he jumps onto it.
    (3) In "Goldfinger," Bond's sports car has a roof which Bond can cause to detach with the flick of a lever. In the Honda commercial, the Honda del Sol has a detachable roof which the Honda man uses to eject the villain.
    (4) In "Moonraker," the villainous henchman, Jaws, sporting a broad grin revealing metallic teeth and wearing a pair of oversized goggles, jumps out of an airplane. In the Honda commercial, the villain, wearing similar goggles and revealing metallic teeth, jumps out of a helicopter.
    (5) In "The Spy Who Loved Me," Jaws assaults a vehicle in which Bond and his female sidekick are trying to make their escape. In the Honda commercial, the villain jumps onto the roof of the Honda del Sol and scrapes at the roof, attempting to hold on and possibly get inside the vehicle.
    (6) In "You Only Live Twice," a chasing helicopter drops a magnetic line down to snag a speeding car. In the Honda commercial, the villain is dropped down to the moving car and is suspended from the helicopter by a cable.
    These supposed similarities are abstract enough that the court's injunction can be plausibly deemed to protect ideas. And indeed, a scholar named Jonathan S. Katz gave a glowing review of this case in an article titled "Expanded Notions of Copyright Protection: Idea Protection within the Copyright Act", 77 Boston University Law Review, 873 (October, 1997).

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