we turn now to the second of the foundational doctrines in copyright law the idea/expression distinction every system of copyright law contains some version of this distinction in US law its statutory locus is section 102 B of the Copyright Act which provides quote 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 and quote some scholars such as Professor Pam Samuelson argued that this provision reaches more broadly than the idea/expression distinction but I'll put that controversy aside for the time being
in the Eldred case which we'll consider in detail in a subsequent lecture the United States Supreme Court suggested that the idea/expression distinction is necessary in order to reconcile copyright law with the principle of freedom of speech embodied in the First Amendment of the US Constitution lots of other examples of this distinction can be found in the law of other countries so what exactly is this famous fundamental distinction it's easy to state but surprisingly hard to apply the key concepts are clear enough neither ideas nor facts are protected by copyright law only the way in which
an author expresses ideas or facts is protected simple enough unfortunately the key terms idea fact expression are all ambiguous and contested to figure out what they mean you need to examine some applications of the principles here's a general guideline when interpreting and applying the idea/expression distinction try to avoid attributing to those terms their ordinary meanings think of them rather astern of art shorthand references to loose clusters of things that for policy reasons the law includes in or excludes from copyright with that principle in mind let's consider some of the context in which the idea/expression distinction
arises the first such context is known as the merger doctrine suppose there's only one set of words that accurately conveys a particular idea in such a situation the principle that ideas are unprotected and the principle that expression is protected clash which prevails the principle that ideas are unprotected so anyone is free to use that uniquely appropriate set of words with impunity such situations arise more often you might think particularly in the context of computer software but we'll wait to take up those illustrations until lecture number three when we consider the various kinds of works that
copyright covers the second context is known as the Sens affair doctrine the 1978 case of Alexander versus Haley provides a good illustration the basic facts of that case were as follows prior to the publication of Alex Haley's book roots the plaintiff wrote a similar book about the history of her own family during slavery and about her own gradual awakening to the importance of her heritage when roots was published and became famous the plaintiff brought a copyright infringement suit against Haley in support of her claim the plaintiff provided a long list of parallels between her book
and roots arguing that Haley had copied heavily from her the court eventually ruled that despite the large number of similar scenes Haley had not engaged in copyright infringement one of the grounds on which the court rejected the plaintiffs assertions is that they involved so-called Sens affair here's the language in which the court expresses this judgment quote these are incidents characters or settings which as a practical matter are indispensable or at least standard in the treatment of a given topic attempted escapes flights through the woods pursued by baying dogs the sorrowful or happy singing of slaves
the atrocity of the buying and selling of human beings and other miseries are all found in stories at least as old as mrs. Stowe's other examples include scenes portraying sex between male slave owners and female slaves and the resentment of the female slave owners the sale of a slave child away from her family and the attendant Agony's the horror of punitive mutilation and slave owners complaining about the high price of slaves in quote all of these images the court ruled constituted unprotected ideas because they were standard vignettes in the genre of slave narratives some more
recent and perhaps surprising applications of this doctrine of sins affair involve photography here two courts refused to grant copyright protection to images that they conclude are standard or typical of a particular genre for example in the 2005 case of Bill diode on a photography versus Kate Spade the plaintiff contended that this photograph which appeared in an advertisement for women's shoes was infringed by this one the court rejected the plaintiffs claim arguing that the positioning of a model sitting on a toilet with her feet angled inward though quote seemingly unnatural and quote was a common trope
photographing stylish women in this pose to showcase fashion accessories was an idea quote used often in popular culture and quote similarly in the 2003 Jen T oak case the photograph on the right side of the slide was held not to infringe the copyright in the photograph on the left side because even if one photographer had been imitating the other the compositional elements they had in common were quote standard photographic conventions or devices and quote and thus not copyrightable here's a more straightforward application of the same principles suppose I write and publish a cookbook a collection
of recipes of a particular sort suppose further that I created some of those recipes myself you copy some of my recipes and include them in your own cookbook have you engaged in copyright infringement if the recipes that you copied contain nothing more than descriptions of ingredients quantities ways of combining things cooking times and so forth in other words instructions for creating the dishes in question then the answer is no the reason is that unadorned recipes are said to be ideas or methods of operation and thus not subject to copyright protection by contrast if the recipes
you copied included expressive embellishments for example descriptions of how the dishes taste or suggestions concerning social circumstances for which they would be appropriate and you would be in trouble because such things are considered expression another example maps have been protected by copyright law for a long time but not all components of maps enjoy copyright protection for example the location of roads mountains rivers and political boundaries the names of cities and towns are all excluded from copyright protection thus you can copy such things from someone else's map onto your own without running afoul of the law
this shouldn't be certain terribly surprising more interesting is the fact that newly coined place names are not shielded suppose for example an explorer surveys a remote mountain range selects names for the hitherto nameless Peaks and draws up a map that includes those new names another cartographer copies those features and those names into his own map copyright infringement know is sometimes said that the newly applied names although created by the original explorer become facts once applied to the features of the world but that can't be right by the same logic the text of my novel becomes
a fact once it's published and I lose copyright protection for it a more plausible reason is that to recognize copyright protection for newly created place names would frustrate important public policies concerning the communication of geographic information latent in that rationale is the seed of a much more general principle that will flower in subsequent lectures so what aspect of maps do enjoy copyright protection the answer is original selection arrangement or presentation of individually unprotected elements the net effect is that entirely conventional maps receive no protection whatsoever consider for example this screenshot of a map created by
Google of the sector of Cambridge Massachusetts that includes Harvard University if I copy it without permission as I've done for the purpose of this slide have I engaged in copyright infringement probably not because it's difficult to locate in the Google map any unconventional selection or presentation element we come finally to the tricky case of history perhaps the most striking effect of the idea/expression distinction is the limited legal protection enjoyed by works of history suppose for example I spend years investigating the life of a little-known politician and then write and publish a biography of him you
read my book and then relying on it quickly write your own biography of the same politician you're a better writer than I am so your book sells better I'm angry I point out that you could not have written your book without mine and that most of the story I told and most of the arguments I made in my book can be found in yours do I have a copyright claim against you if the things you lifted from me consist of facts about the life of the politician and the answer is no no matter how much
time in pain it took me to ferret them out this principle for example govern the outcome of the litigation between two historians arising out of the close similarity between two biographies of the Rosenbergs core tried for treason in 1953 because all of those similarities were deemed to involve facts the defendant escaped liability what if I included in my biography some speculations and the same speculations appear in yours if I have represented my speculations as facts then they too are unprotected the rule underlying this outcome is known as copyright estoppel having depicted an assertion as a
fact I am said to be a stopped from subsequently recharacterizing it so for example in the Nash case the Court of Appeals ruled that the plaintiffs contention in his book that John Dillinger had not been killed by the FBI at the Biograph theater but had lived on in California was not protected by copyright because the plaintiff had offered that contention as a fact what if you lift from my button from my biography not a factual contention but an historical theory once again I will lose but for a different reason historical theories are considered ideas and
thus unprotected so for example in the whole encase the court of appeals held unprotected the plaintiffs assertion that the hindenburg dirigible had been destroyed by a member of its crew in an effort to discredit the Nazis the bottom line is that an historian should not expect to get much protection from copyright law to be sure if a second historian copies significant hunks of her prose or closely tracks original ways in which she has expressed arguments she may have a claim but if as in the usual case a second historian free rides on her research and
lifts facts or ideas from her books she has no recourse these examples surely do not exhaust the various context in which the idea/expression has been applied to limit the scope of copyright but they should suffice to give you an overall sense of the law in this area
