Thursday, July 28, 2011

Idea/Expression Dichotomy in Copyright Law

Under U.S. law, the standard for determining copyright protection is: 1) originality; and 2) fixation to a tangible medium of expression. The standard for determining originality is a pretty low bar. Even the most minimal level of originality will do. Rest assured you will not be judged by a panel of art or other critics. (Though as the Supreme Court ruled in Feist, mere assembly of facts, such as in a phone directory, as was the case in that instance) will not meet even this very low bar of originality. The fixation requirement just goes to the recording, capture and transcription. So singing in the shower, no matter how original, if not recorded or written on a sheet of music, would not pass the test of copyright.

Many often mis-categorize ideas as being protectable by copyright. They are not. Rather, it is the expression of the idea that may conceivably be protected. Think of it this way: The "idea" of a thief who wants to rob a bank is hardly an original one. But what might be original is how that idea is expressed. The more similar that expression is to previous copyrighted works, the greater the risk one runs of being sued for copyright infringement.

See the link below for a summary of recent case involving alleged infringement of certain photographs.  Take a look at the photos and determine for yourself. Are the expressions substantially similar? By the way, despite the editorializing of the author of the article, I am not convinced the Court's ruling was improper. Granting motions to dismiss should be used sparingly and these questions of "fact" are more properly the province of a juries, which necessarily would come much later in the case.


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