Happy Idea/Expression Dichotomy Week!

Today marks the start of the fifth annual Fair Use Week when library institutions, academics, and several anti-copyright organizations disseminate public-facing messages—from useful to whimsical—on the virtues of the fair use doctrine in copyright law. There is, of course, nothing wrong with highlighting the utility of fair use per se, but the mere fact that these parties devote so much energy to a week of fair use celebration is more than a little propagandist in spirit.

For one thing, several of the organizations and individuals waving fair use banners have long been engaged in an effort to expand digital-age fair use until, like a river breaching its levees, it drowns copyright protections out of existence. Second, for the time being, fair use remains a relatively arcane legal defense that may be presented in a copyright litigation—one that is best understood by reviewing precedent case law. As such, the number of creators the doctrine actually touches is quite small even though its most ardent celebrants would say that fair use is so abundantly generative of new works—scholarship, reportage, parody, etc.—that we are all beneficiaries of its application.

And that narrative is true up to a point. Fair use does protect and foster many forms of expression that are essential in a diverse and democratic society. Oddly enough, though, we never celebrate the less melodious-sounding Idea/Expression Dichotomy Week even though it is probably a more important and more generative principle. The idea/expression dichotomy (or distinction) affirms that copyright’s exclusive protections do not extend to ideas but only to original expressions of ideas. And although many critics strive to portray copyright as a system for monopolizing ideas by a privileged few, this is not a sentiment you’ll hear from many actual creators. And that’s not because fair use enables authors to copy from one another in great abundance, but because the idea/expression dichotomy enables creators to work without giving much thought to the prospect of infringement in the first place.

When copyright skeptics overemphasize the need for authors to build upon precedent works (a fact no creator denies), they often muddy fair use with idea/expression, either naively or by design. In practical terms, there are fewer incidents when an author needs to explicitly copy some portion of an existing work than there are moments when the author simply embarks on a project that may be broadly inspired by some precedent work. So, the budding singer/songwriter, for example, is free to use all the raw elements that comprise her favorite punk songs to produce her own expression we recognize as punk; and with very few exceptions, her album will sit comfortably next to The Ramones, The Dead Kennedys, and The Clash without inviting conflict. And fair use has nothing to do with it.

Without wandering too deep into the dense weeds of early IP law, suffice to say the idea/expression dichotomy was shaped into its present doctrinal form by a handful of cases that challenged the courts to identify exactly what copyright protects, including the boundaries between copyright and patent, with the latter more properly associated with protecting ideas. Often, 19th-century cases were as much an exercise in evolving semantics as they were in legal theory. For instance, prior to 1874, a copyrightable work could have an “author, inventor, or designer” until Congress amended the statute to clarify that the word inventor in this context only referred to the printmaking field, where the now-disused term of art once described the original artist/designer in that process.

Absent that clarification, we can see how a word like inventor can blur the line between copyright and patent, especially when it’s the exact word in the Constitution’s IP clause that describes the type of creators who are entitled to patent protections. The distinction between idea and expression was first substantially articulated in the United States in the case Baker v. Selden, decided by the Supreme Court, also in 1874. The key decision in Baker held that while Charles Selden’s book about his system of bookkeeping (an expression) may properly be the subject of copyright, the bookkeeping system itself (an idea) is not a subject of copyright. It turned out Selden’s system wasn’t granted a patent either, but that’s another story rich in tedious detail.

As core concepts, both idea/expression and fair use have long pedigrees dating back to English copyright law, to which American courts turned for guidance in the early 19th century, since we didn’t have any case history of our own. As scholar Matthew Sag describes in his 2011 paper The Prehistory of Fair Use, the fundamental principles of American fair use doctrine can be found in key copyright cases in England as early as 1741. But Sag further notes that his examination of pre-American fair use reveals a broader understanding of authors’ rights than many contemporary critics tend to ascribe to premodern copyright. In other words, the politicized narrative that copyright protections have continued to balloon out of control while fair uses are quashed is neither evident in the contemporary record nor necessarily well-founded in the historic one.

As new technologies transformed the nature of creative work in the 20th century—enabling so many professional authors that the United States became the world’s largest producer—it was inevitable that so much abundance would have to include countless works that are relatively similar to one another. And the limitation on copyright that most often supports this dense, rich anthology is the idea/expression dichotomy—not fair use.

Because the fair use exception can be tricky—even at times for attorneys and courts—it remains an ideal subject for sowing misunderstanding in public fora, and this includes exaggerating its role in fostering new expressions. But the simple truth is that most authors produce most of their work without giving precedent works, or copyright law, much consideration at all. In fact, it would be stiflingly daunting if they tried. So, there’s nothing wrong with celebrating Fair Use Week, but it is almost certainly Idea/Expression Dichotomy doing most of the heavy lifting throughout every creative year.


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© 2018, David Newhoff. All rights reserved.

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3 comments

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  • Alexander Lerch

    Mr. Newhoff, probably copyright skeptics would question that there is something like an idea/expression dichotomy, an opinion shared by some important judicial philosophers.

    Certainly, it doesn’t become a dichotomy (“a division into two especially mutually exclusive […] groups” – Merriam-Webster) just because we call it one. We have to show that. I’m sure you heard this too many times, but still: why exactly is “a British Secret Service agent named James Bond with code number 007 and a fondness for Martini” an expression and not an idea?

    John Searle once wrote: “Every subject matter has its catchphrases to enable us to stop thinking before we have got a solution to our problem”. The term “idea/expression dichotomy” might be just such a catchphrase.

    I also don’t think that most creators give copyright law few consideration. It’s just that they grasp intuitively what they’re allowed to do. Like social etiquette, which we always “consider” in our interactions and which is in reality very complex.

    You don’t consciously ask yourself if you have to secure any rights from Toyota because a Toyota car appears in your movie. Similarly, if a character quotes a line from Sartre. Or you use “Matrix digital rain”. etc. But just because all this seems effortless to you, it doesn’t mean that copyright is based on a few clear concepts and simple rules. Already Justice Joseph Story remarked that IP more than any other aspect of law depends on distinctions that are “very subtle and refined, and, sometimes, almost evanescent.” Blurred lines, indeed.

    • Thanks for your comment, Alexander. Idea/expression dichotomy is a term of art among legal professionals; it’s simply the correct way to name the doctrine regardless of any further etymological discussion one might have about the meaning of each of those words. So it’s much more than a catchphrase; every legal scholar or practicing copyright attorney knows what it means, even if there may be debate (or litigation) in a given circumstance as to where the idea stops and the expression begins. It’s true that copyright analysis (e.g. in a case) can be very subtle, but I would argue that those subtle distinctions are exactly why copyright tends to be generative rather than restrictive.

      In that regard, you began to answer the question yourself. The more a new spy character resembles James Bond, the more likely an infringement is to occur. But a creator can push that envelope very far until he begins to actually copy Bond and invite a problem. So, it’s true that an author sitting down to write a new spy series should be very conscious of James Bond, though he may not be conscious of every other spy character being written. Fortunately, it doesn’t matter because copyright only protects the subtle distinctions between his work and another work, and the probability of the two works being too similar is quite low. Plus, actual infringement requires knowledge of the prior work. Meanwhile, most authors don’t set out to capitalize on popular franchises, and it turns out the market tends to reward the effort to be more original.

      Work by work, the IP considerations will vary. If a brand-name car appears in your movie, you might need to consult an attorney; if a character quotes Sartre, you don’t. Every work has its own considerations, but an author who sets out to write a literary work or a song or starts taking photographs or making graphic designs generally does not have to think much about whether or not they’re infringing an existing work. And that’s precisely because of the subtle nature of analysis under copyright law.

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