Idea vs Expression

Copyright protects the “expression” of an idea, but not the idea itself. For example, if you wrote Hamlet, you could copyright the particular arrangement of words. But you could not copyright the idea of a mad Danish prince on a murder spree. If you are a visual artist, you can copyright a particular pattern of shapes and colors, but not the idea that caused you to create that arrangement.

Section 102(b) of the Copyright Act codifies the prohibition on copyrighting ideas:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. § 102(b).

If you’re confused by the distinction between idea and expression, you’re in good company. No less an authority than Judge Learned Hand admits that the distinction is “inevitably ad hoc.”

Inevitably Ad Hoc
Anyone is free to study a copyrighted work, learn the underlying idea, and then use that idea in her own work. This principal is based in the Constitution. Specifically, the Copyright Clause requirement to “promotes the progress of science and useful arts.” And perhaps also based in the First Amendment’s strong policy favoring free exchange of ideas.

Patent law is different. A patent protects the idea that is embodied in a useful invention. In this sense, copyright protection is much “thinner” than patent protection. However, copyright protection is automatic, where patent protection requires an expensive application process.

Copyright’s protection of expression includes protection against literal copying, paraphrase, abridgment and other “derivative works.”  But copyright never protects ideas, methods, or facts. No matter how diligently an author worked to discover these facts, she cannot protect pure facts through copyright.

Copyright Does Not Protect Facts and Useful Articles

Copyright does not protect facts or useful information. The Supreme Court established this principle in the 1879 case  Baker v. Selden

Details of Baker v. Selden

Baker v. Selden stands for three important copyright rules:

  1. Copyright in a work does not cover ideas, concepts and systems described in the work, but only the expression in which the ideas are communicated;
  2. If, in order to duplicate or put into use an unprotected idea, concept, or system, it is necessary to  substantially copy another’s otherwise copyrightable expression, such copying is not an infringement; and
  3. blank forms—i.e., forms used for the recording of information rather than for explanation—are not eligible for copyright.

The first propositions was codified as § 102(b) in the 1976 Copyright Act: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” But prior caselaw is still valid. The House Report states that this  §102(b) “in no way enlarges or contracts the scope of copyright protection” under prior law; its purpose “is to restate… that the basic dichotomy between expression and idea remains unchanged.”  H.R. Rep. No. 94-1476, at 57 (1976).

Idea vs Expression in Literature

The impact of the idea/expression dichotomy is particularly relevant in fiction and literature. Copyright protects against the unauthorized copying or paraphrasing of a short story, novel or drama. Copyright bars unauthorized “derivative works” (like abridgments and translations). Copyright can even protect an author against copying of a detailed story line, with its plot incidents and sequences, even though the copyist uses altogether different language for description and dialogue. Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49 (2d Cir. 1936).

But copyright does not protect against copying the more general patterns, themes or story ideas, or character prototypes. Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930).

It’s difficult to draw the line between protected expression and unprotected ideas. There is no litmus test. As Judge Learned Hand said: “Obviously, no principle can be stated as to when an imitator has gone beyond copying the ‘idea,’ and has borrowed its ‘expression.’ Decisions must therefore inevitably be ad hoc.”  Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487 (2d Cir. 1960). See generally, Mannion v. Coors Brewing Co., 377 F. Supp. 2d 444 (SDNY 2005).

The scope of protectable expression depends on the nature of the work. For example, fictional works are afforded greater scope than factual works. Granting overly-generous copyright protection to factual works risks obstructing the statutory policy favoring free access to discoveries, methods, and systems. For fictional works, this risk is minimal.

Merger: No Copyright when the Idea is the Expression

The second Baker v. Seldon principle is that even normally protectible material in a copyright-protected work may be freely reproduced when using the underlying unprotected system makes this reproduction unavoidable.

In cases where use of the idea mandates use of a limited number expressive options, that there is a “merger” between idea and expression, and that the expression becomes unprotected as well. In analyzing merger claims, courts may grant a “thin” copyright. That is, the work is protectable expression, but the expression is so thin, and the corresponding scope of protection so narrow, that only identical copying will lead to infringement. Other courts analyze merger claim by neatly denying copyright protection altogether.

Merger: No Copyright for Legal Forms

The “thin copyright” approach is exemplified in Continental Casualty Co. v. Beardsley,  253 F.2d 702 (2d Cir. 1958).  In Beardsley, the plaintiff claimed copyright protection in the text of a set of legal documents (the docs at issue were a bond drafted to cover the replacement of lost securities, an affidavit, a contract form, and a board resolution). The 2nd Circuit Court of Appeals held that the language of the forms was copyrightable. Unlike Baker v. Seldon, these forms were not blank. But the court didn’t stop there. Because any use of the forms required the user to copy them essentially verbatim, this copying would be permitted. Copyright law cannot be used to monopolize the underlying business and legal “system.” The 2nd Circuit granted “thin” copyright protection:

[The pertinent court decisions] indicate that in the fields of insurance and commerce the use of specific language in forms and documents may be so essential to accomplish a desired result and so integrated with the use of a legal or commercial conception that the proper standard of infringement is one which will protect as far as possible the copyrighted language and yet allow free use of the thought beneath the language. The evidence here shows that [the copyist] in so far as it has used the language of [the copyrighted] forms has done so only as incidental to its use of the underlying idea. Casualty Co. v. Beardsley,  253 F.2d 702 (2d Cir. 1958).

Merger: No Copyright for Sweepstakes

Where the protectable expression merges with the unprotectable idea, some courts grant “thin” copyright protection. Other courts deny copyright protection altogether. The 1st Circuit Court of Appeals denied protection altogether to a plaintiff’s attempt to copyright the rules of a promotional sweepstakes. Morrissey v. Procter & Gamble Co., 379 F.2d 675 (1st Cir. 1967). The 1st Circuit found that there were only a limited number of ways that a person could vary the statement of the contest rules while making allowable use of the unprotected contest format. It stated:

When the uncopyrightable subject matter is very narrow, so that “the topic necessarily requires,” if not only one form of express ion, at best only a limited number, to permit copyrighting would mean that a party or parties, by copyrighting a mere handful of forms, could exhaust all possibilities of future use of the substance. Morrissey v. Procter & Gamble Co., 379 F.2d 675 (1st Cir. 1967).

Merger: No Copyright for Selecting Among Finite Options

The principle that copyright should not be extended even to “expression” when there is a finite range of ways to express an underlying subject matter has also been employed in the field of art, where it has been held that a piece of jewelry in the shape of a bee with small jewels arrayed on its surface reflected an unprotectible “idea.”  Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738 (9th Cir. 1971).  See, Mannion v. Coors Brewing Co., 377 F. Supp. 2d 444 (SDNY 2005).

Expression vs Fact

The distinction between expression and fact is related to the distinction between protectable expression and unprotectable ideas. Copyright cannot protect a fact or a group of facts. Copyright will not protect an author’s work in the discovery of facts, regardless of how hard the author worked to discover or arrange the facts. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) (except when the facts are selected, coordinated, or organized in an “original” manner).  Copyright protects creativity, not diligence.

Facts are not copyrightable. Section 102(b) of the Copyright Act excludes any “discovery” from copyright protection. This policy is further supported by the fact that people don’t create or author facts. They merely deduce or discover existing facts. Copyright protects the creative works of original authorship. Therefore facts—and even speculations as to facts—that are unearthed by an historian or biographer can be copied, as long as the copier expresses the facts in her own language. Miller v. Universal City Studios, Inc., 650 F.2d 1365 (5th Cir. 1981); Hoehling v. Universal City Studios, Inc., 618 F.2d 972 (2d Cir. 1980).

In the past, courts relied on the “sweat of the brow” doctrine to extend copyright protection to facts and data. No longer. No matter how much time, effort and expense invested in unearthing information (no matter how sweaty the brow), the information remains uncopyrightable. In 1991, the Supreme Court unequivocally rejected the sweat of the brow doctrine:

Notwithstanding a valid copyright, a subsequent compiler remains free to use the facts contained in another’s publication to aid in preparing a competing work, so long as the competing work does not feature the same selection and arrangement. . . . Facts, whether alone or as part of a compilation, are not original and therefore may not be copyrighted.  Feist Publications, Inc. v. Rural Telephone Service Co.,  499 U.S. 340, 349 (1991). 

Blank Forms are Not Copyrightable

The third and final “offspring” of Baker is its holding that “blank forms” are not copyrightable. This is reflected in the text of § 202.1(c) of the Copyright Office Regulations:

The following are examples of works not subject to copyright and applications for registration of such works cannot be entertained:… blank forms, such as time cards, graph paper, account books, diaries, bank checks, scorecards, address books, report forms, order forms and the like, which are designed for recording information and do not in themselves convey information.

The rationale for excluding protection for blank forms is partly that the forms are intentionally designed to be put into use in the course of implementing an unprotectible system. Moreover, a blank form with little or no writing might be thought to lack “original authorship” as required of all copyrightable works. Not surprisingly, courts disagree as to whether forms containing various degrees of text and graphic design should be treated as unprotectable “blank forms.”  See Bibbero Sys. v. Colwell Sys., Inc., 893 F.2d 1104 (9th Cir. 1990). Cf. ABR Benefits Servs. Inc. v. NCO Group, 52 U.S.P.Q.2d 1119 (E.D. Pa. 1999) (applying Third Circuit’s view that “blank forms may be copyrighted if they are sufficiently innovative that their arrangement of information is itself informative”).