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
    Anonymous Coward, 4 Jul 2009 @ 1:29pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: JK Hamburgler

    "Mind you, all these films came out within a few months of each other, which got me thinking to reasons why these films were created and why there wasn't a big legal stink about it. I suppose justification as "art" isn't the real reason. Profit, and lots of it, and as long as it benefits the Big 5 Hollywood Studios, everything seems to get the nod."

    No, it is because while each of the films you listed has similarities (volcanos, end of world, reality, or insects) they are each distinct and unique expressions of an idea. This is where you fall into a trap, trying to say things are the same, when in fact they are completely different, except for their overall category.

    By your logic, I Love Lucy and M*A*S*H are similar enough that the I Love Lucy people should have sued. After all, they are both TV shows, both comedies, both dependant on both visual and aural comedy, both shown on TV, and both having stars, supporting characters, and guest stars.

    If you seek to find similarities, you always can. But you can also almost always find the difference that make them unique speech, and thus non-infringing.

    "Until Copyright and IP is no longer a method used to economically exploit people, it will only be used as a tool to economically exploit people."

    But it isn't. For the most part, the people paying want the product more than they want their money. Nobody has a gun to their heads.

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