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

Reader Comments

Subscribe: RSS

View by: Time | Thread

  1. identicon
    Zohan Dvir, 4 Jul 2009 @ 3:27pm

    You sir, are wrong.

    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.

    The films I listed have similarities, and are reasonably close substitutes. Your example of M*A*S*H and I Love Lucy is a poor example and fails the "close substitute" test.

    But hey, why not? This approach worked super well for the music industry. See:

    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.

    Ah, so speech can be non-infringing but move into products, or the area of "economic activity" and it becomes an issue.

    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.

    Not necessarily true. Copyright and IP are being misued and abused as a welfare system for labels, recording companies, movie studios and the like. Back 50 years ago when there were few competitors, the businesses protected each other and used Copyright as a tool to eliminate specific competitors. The problem today, is that you don't need a printing press, newsies, or distributors to push your wares. You have the internet.

    Today's approach is that it fails to reflect the original intent of copyright protection, which was conceived not as a welfare program for authors but to encourage the creation of new works, and the proverbial deck is stacked against small business who can bring any type of niche product to market- be it a song, movie, invention like the Blackberry, or the like. The point I was trying to make is that it seems that unless they're signed on by a major distributor, production house, or the like, to develop a product/screenplay/song, be it even reinterpretation or derivative, is at a higher risk to be stolen or even sued.

    As for Copyright and IP, as it stands now, it certainly *IS* a method for economically exploitation.

    We know that stronger copyright protection can increase the market value of companies. But this is a gain to corporate, not societal welfare, and what I believe was not the intended outcome of the USPTO, Copyright or Patents in general.

Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here

Subscribe to the Techdirt Daily newsletter

Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Techdirt Gear
Shop Now: I Invented Email
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Report this ad  |  Hide Techdirt ads
Recent Stories
Report this ad  |  Hide Techdirt ads


Email This

This feature is only available to registered users. Register or sign in to use it.