Copyright law does not protect ideas or other no-expressive elements of a work. The law protects only the elements of work that are considered as creative expressions such as a particular way an author expresses an idea. For example, a novel is a creative work of art, which is fixed in a manuscript, and is subsequently published. The original expression used in the novel is protected by copyright, but ideas in novel are not subject to protection. It is very simple to state in this manner but its practical application is difficult.
Literal copying of the expression from the novel no doubt constitutes infringement, but copying the central idea of the work like premise of a movie or a big idea in a novel is unprotected and does not constitute infringement. Where copying runs in between these two extremes, it becomes a different ground for copyright application. This distinction is the hallmark of copyright litigation. For example, the theme of a hit movie is an attractive proposition for other directors to copy. Such a dispute does raise when the questions of the nature of permissible infringement under copyright law arise.
The confronting problem is that the words, 'idea' or 'expression' have neither been defined in the law nor the meanings of the words have been explained by the case law. The distinction between idea and expression thus looks to be a policy-based distinction where: 'an element' or 'a work' should be subject to copyright holder's exclusive domain, having defined that the next question is, which elements should be free to copy. For example, if someone sells posters, books or other art work which is a word to word copy of a novel or bit by bit copy of a computer program, such act clearly constitutes copying of an author's expression of ideas. The problem thus raises the proposition of amending or redrafting the existing law in order to define parameters for inclusion or exclusion of these elements from the purview of copyright law.
The issue has been well explained by Paul Goldstein on Copyright. According to him copyright law does not apply to ideas such as a parade with floats or game show or contest etc; these general concepts are out of the ambit of copyright law, unless copy is not done of particular expression of the concept relating to a parade or production of game show.
'Ideas' falling within the phrase, "building block" or having character of 'general elements' are required to be out from the scope of the protection for to check the control related to an entire genre of artistic expressions. This concept balances the author's rights against the cost of copyright protection.
In order to determine whether or not copying has taken place, America's well known Judge and Jurist 'Learned Hand'1 developed an 'abstraction test'. As per this test events and characters are such elements which are not protected in order to avoid virtual monopoly of a genre of work. According to 'Learned Hand' basic elements of a play or novel can be expressed in innumerable ways. A comedy based upon conflicts between Irish and Jewish families where the marriage of their children takes place, such elements are no more susceptible of copyright than the outline of Romeo and Juliet. There is thus no infringement in this case as only general elements have been copied since a new author can write different dialogues, invent new plot or invent different characters, or change the neighbourhood or connect with new scene to resolve the conflict.
There can be another author who may copy not the general story but the particular way the story unfolded in the earlier play; the sequence of scenes, the plot mechanism to unfold the information to the characters, dramatic series of acts and exchanges leading to the resolution of conflict this act of copying is infringement of the law, as the act of copying has gone beyond the general idea and the expressions have been copied. To copy the main traits of characters, much of the dialogue and long series of detailed incidents or actions or the story in fact leads to infringement.
This principle also applies to other works. For example, a famous cover from the New Yorker Magazine shows the myopic worldview of a typical New Yorker. Another artist can copy the idea by depicting a view that echoes the background buildings in the world. But it would be copying of expression if the other artist depicts the same vantage prompt and copies the specific expressive elements.
It may be noted that non-original elements are not protected. Similarly elements borrowed from unprotected ideas are also unprotected. Characters of general nature or elements such as dress or manner of speaking are created unimaginatively; another author can copy such characters without infringement.
The degree of originality also determines the scope of protection. It may be noted that creative forms, with unique characters, inventive plot line and imaginative prose are protected. Similarly work of an author using cliches, recycled plot run and derivative characters is also protected against word-for- word copying, though the work of author bears greater protection against non-literal copying. A work that primarily conveys unprotected material has more limited protection than a work of creative expression.
The game is thus between protected and unprotected ideas. For example, an author submits a story to a magazine; the story is turned down to be published. A few months later a story appears in the Magazine, the basic story line is the same; however, all other elements of the published story are also the same. The question arises has the Magazine copied protected expression?
The review of story published in the magazine shows that only unprotected ideas were copied. These elements were very general and only represented an outer layer of the story. The story's submission for publication in the Magazine does not protect it under copyright law, since offering of unprotected ideas does not counter copyright protection.
An artist paints a painting, "Blue Moon", a four by five foot painting, all basic blue; the painting is well received by critics and the public. Not long after, Yango another artist paints "Aquatic" a painting having exactly the same color, and about one quarter lager in size. Yango freely admits that he copied from the earlier work painted by another painter, but argues that he copied only the idea of a basic blue painting. Has Yango copied protected expression?
An idea behind the work is very difficult to define and also the act of its separation from the expression of idea. In this case, on policy grounds courts are likely to hold that one painter cannot have the exclusive right to make blue paintings, thus Yango only copied the un-protected idea.
The question now arises how an idea can be protected? Following instruments may be used:
I. Contract
II. Secrecy
III. Attribution
The fact is that an idea is not protected by copyright. The scope of protection is affected by the degree of originality in the work, copying of protected expression can occur only at much lower level of abstraction, that is, close to verbatim copying2.
(The writer is an advocate and is currently working as an associate with Azeem-ud-Din Law Associates Karachi)
1. See Nichols v Universal pictures 45 F. 2d 110 (2d Cir. 1930)
2. See Hoehling V. Universal City Studios, 618 F.2d 972 (2d Cir. 1980)
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