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Critical Copyright Concepts: What's Protected?

By Jill Gilbert Welytok
Excerpt from Entrepreneurs' Guide to Patents, Trademarks, Copyrights Licensing and Trade Secrets (Penuguin/Putnam Press 2004)

No one in Hollywood has been sued with more regularity than Steven Spielberg. It's amazing how many creative minds conceive story lines involving extra-terrestrial beings, sharks snacking on sunbathers and amusement parks with live dinosaurs.1

Fortunately for Mr. Spielberg, copyright law doesn't protect ideas and imaginings of the masses -- only the "fixed", tangible expression of ideas. All aspiring writers become litigants who sue Mr. Spielberg for copyright infringement must prove that significant portions of their actual manuscripts are substantially similar or equivalent to the successful motion picture, not merely about similar subjects.

In This Chapter You Find Out:

  • What materials you can and cannot copyright
  • How to control the use your own original work product
  • What you can safely and fairly use from the works of others
  • What rights a copyright holder has
  • How to get copyright protection for your work
  • How long a copyright lasts
  • About damages and penalties for infringement

Urantia Foundation is an organization whose members believe in the teachings of non-human spiritual beings. These teachings are delivered through revelations made to a patient of a Chicago psychiatrist, Dr. Sadler. The psychiatric patient has assembled teachings in a book which the Foundation duly copyrights and formally registers.

The Foundation learns that one of its members, Kristen Maaherra, is distributing a computerized version of the book on disk.

The Foundation sues Maaherra in the District Court of Arizona for infringing its copyright. Maaherra contends that the Foundation's copyright is invalid because copyright laws do not protect works authored by "non-humans." The district court rules in favor of Maaherra, and the Foundation appeals.

The appellate court opines the "threshold issue in this case is whether the work, because it is claimed to embody the words of celestial beings rather than human beings, is copyrightable at all." Ultimately, the Appellate court holds the Foundation is entitled to copyright protection because humans have "compiled" the teachings of the divine beings, and compilations qualify as original, copyrightable work under the law. 2

As this case illustrates, copyrights protect a wide range of creative expression from a universe of sources. This chapter provides you with a overview of the legal bounds of protectible creative expression.

The Core of Copyright: What's Creative Expression?

Lawyer's Note:
Copyright law recognizes that great minds think alike. The essence of copyright law is that it protects expression of ideas, not the ideas themselves.

It's not uncommon for multiple keen minds to independently come up with the same ingenious ideas or discoveries. But it's unlikely that two creators will express their ideas in exactly the same way. This is precisely why copyright law was never developed to protect ideas. Copyright protects the creative expression of ideas. It's not enough in a copyright infringement action to prove similarity of ideas; the litigant must prove that significant portions of the expressive format have been used without permission.

Ideas, concepts, methods and processes are not subject to copyright protection. The current Copyright statute clearly states "[i]n no case does copyright protection for an original work of authorship extent 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." Ideas, processes, methods and concepts are the purview of patent protection, while the works that express them are protected by copyright.3

A recipe for chicken soup is not subject to copyright protection. It's a method or process for creating the soup. Anyone is free to reproduce a list of ingredients and proportions for this popular home remedy. However, a written, descriptive work containing detailed textual instructions and original photographs of the soup is subject to copyright protection. Similarly, facts about a historical figure are not copyrightable, but a biography expressing them may be copyright protected.

Lawyers Note:
The first step in determining whether material is of a type which can be copyrighted, is whether it constitutes some form of expression. The law makes a clear distinction between what constitutes expression, and what is an idea, process, method, concept, system, principle or discovery that may be better suited to patent protection.

Only the "Expressive Elements" Get Protection

Once of the most important copyright cases ever decided involves a field we don't usually associate with creativity: bookkeeping.

Baker v. Selden, 4 decided in 1879, is quoted in a lot of recent decisions involving software. Baker v. Selden is the landmark case that attempted to draw the line between ideas and expression.

In Baker vs. Seldon, the court considered an attempt to copyright accounting forms that are the basis of the "double entry" bookkeeping system. This well known system is based on a system of debits in one column, offset by credits in the other. It's still used today, although it's more commonly implemented with a computer than a pencil. The litigation centered on some of commonly used forms including in an accounting textbook. The textbook illustrated the forms and explained how to use them.

The court held that the textbook describing the method could be copyrighted, since it was an expression of ideas. No one could use the book without permission. However, the blank accounting forms and the accounting method itself could not be copyrighted because they were unprotectible ideas, or processes.

This case has long since been cited for the proposition that copyright sifts out and protects elements of expression, separating them from other unprotectable elements that may be included in a work. In 1976, Congress clarified and codified the idea/expression distinction. Section 102(b) of the 1976 Copyright Act precludes copyright of "any idea, procedure, process, system, method of operation, concept principal or discovery."5 Section 101 of the 1976 Copyright Act provides "the design of a useful article... shall be considered a pictorial, graphic or sculptural work only to the extent that, such design incorporates pictorial, graphic or sculptural work only if, and only to the extent that such design incorporates pictorial, graphic and sculptural works."

Lawyers Note:
Many works contain both creative expressions which are covered by copyright, and unprotectible information. Third parties can use the unprotected portions of the work infringing on any copyright.

Facts Are Not Copyrightable

Universal Studios has a long history of setting precedent in the copyright area. Fortunately for the studio, its lawyers usually manage to prevail.3

In 1980, a writer named Hoehling sued Universal Studios for incorporating certain elements of his script into a motion picture screenplay.6 It seems that Mr. Hoehling had come up with an interesting, original theory that the Hindenburg, a famous passenger-filled airship that burst into flames and crashed in 1937, was sabotaged.

The court in Mr. Hoehling's case determined that while Hoehling's book was a protectible work as a whole, certain facts, aspects and ideas were not subject to copyright protection. Had the story been a work of total fiction, rather than an interpretation of historical facts, the lawsuit might have had a different outcome.

When Can You Use Facts Compiled In Other Works?

Your local telephone directory is one book you can copy with impunity. This is because it's merely a listing of facts. Copyright case law dictates that no one can have a monopoly on facts or information. Otherwise, freedom of speech and press would be severely curtailed by copyright laws.

Authors can copyright only what they create. In Feist v. Rural Telephone Services, 7 the court held that listings in a telephone directory were not protectible, because they represented listings of factual data. The Court rejected a "sweat of the brow" standard pursuant to which the phone company argued that it had expended considerable effort and resources to compile the listings.

Subsequent courts have held that compilations of unprotectible elements, such as facts, may be protectible if the compilation exhibits sufficient creativity and originality.8

However, in Feist, the Supreme Court held that a mere alphabetical ordering does not rise to the level of a creative organizational format. Hence no protection for phonebooks.

You can use the factual data contained in copyrighted works without obtaining specific information. However, you are not entitled to copy a creative organizational format, or original method of expressing such facts.

The Story Line Versus the Script: What's Protected?

Judges deciding copyright cases have read thousands of books, plays and manuscripts that allegedly infringe on other books, plays and manuscripts. As much as half of the text of opinions courts ultimately issue in these cases are devoted to summarizing the intricate, allegedly similar plot lines.

Judge Learned Hand was considered by many to be the most brilliant judge ever sitting on the bench.9 He's credited with some of the most prescient opinions ever written. (Any first year law school student knows the name of Learned Hand.) However, it appears that even the renowned Judge Hand had trouble figuring out where to draw the line between ideas and expression; his two major decisions in this area are seemingly contradictory.

In Nichols vs. Universal Pictures Corp.,10, Judge Hand considered whether a motion picture, The Cohens and the Kellys, infringed on a hit play, Abie's Irish Rose. Both plots involved the inter-marriage between Jewish and Catholic families, and the ensuing animosity and reconciliation of the families of the bride and groom. In the Cohens and the Kellys, Judge Hand held that "A comedy based on the conflicts between Irish and Jews into which the marriage of the children enters, is no more susceptible of copyright than the outline of Romeo and Juliet."

Since a general concept (such as plot or story line, or idea for a software application) is not entitled to copyright protection, it's a good idea to think about the detail in which you discuss your works in progress with potential competitors.

Judge Hand's opinion in Nichols would certainly appear to clarify the standard, if not for the fact that he reached a seemingly opposite conclusion in a subsequent case six years later.

In Sheldon v. Metro-Goldwyn Pictures Corp.,11 Judge Hand got to watch the 1932 movie, Letty Lynton, starring Joan Crawford and Montgomery Clift. He had to decide whether the movie, produced by Metro-Goldwyn Pictures, infringed on yet another popular play having a similar story line. After viewing the flick, Judge Hand decided there were "parallelism" of the characters and events that made the movie substantially similar, and thus an infringement of the copyrighted play.

Both the movie, Letty Lynton, and the play, Dishonored Lady, were based on actual historical events -- an 1857 murder case in which the defendant Madeline Smith was acquitted of poisoning her former lover. In this case, Judge Hand decided that there was sufficient "parallelism" to constitute copyright infringement, despite the historical basis of both plot lines.

A general idea for a story or plot is not copyrightable. However, if a script too closely resembles the twists and turns of the plot line of a copyrighted script, it will be deemed to infringe. Similarity of manuscripts is determined on a case-by-case basis.

In yet another case, Peter Pan Fabrics Inc. v. Martin Weiner Corp.,12 twenty-four years later, Judge Hand himself confessed the extreme difficulty of what constitutean idea versus expression.

The test for infringement of a copyright is of necessity vague. In the case of verbal "works" it is well settled that although the "proprietor's" monopoly extends beyond an exact reproduction of the words, there can be no copyright in the "ideas" disclosed but only in their "expression." Obviously no principal 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.

1. There are a number of reported cases involving Steven Spielberg movies. Litchfield v. Spielberg, 736 F.2d 1352 (9th Cir. 1984); Zambito v. Paramount Pictures Corp., 613 F. Supp. 1107 (E.D.N.Y), aff'd 788 F.2d 2 (2d. Cir. 1985); Williams v. Crichton, 84 F. 3d 581 (2d Cir. 1996); Chase-Riboud v. Dreamworks, Inc., 987 F. Supp. 1222 (C.D. Cal. 1997).

2. Urantia Foundation v. Mahaara, 114 F. 3d 955 (9th Cir. 1997).

3. 17 U.S.C. Sec. 101 et. seq.

4. 101 U.S. 99 (1879).

5. 17 U.S.C. Sec. 101.

6. Hoehling v. Universal City Studios, Inc., 618 F.2d 532 (9th Cir. 1956).

7. 499 U.S. 340 (1991).

8. See, e.g. Atari Games Corp. v. Nintendo, 975 F.2d 832 (Fed. Cir. 1992) (the arrangement of elements of on a program interface may be copyrightable if they are sufficiently original and not dictated by function).

9. Judge Learned Hand (1872-1961) was a judge of the U.S. District Court for New York's Southern District (1909-1924) and of the federal Second Circuit Court of Appeals (1924-1951). He has often been referred to as the "tenth justice of the Supreme Court." During his distinguished career, Hand authored more than 2,000 opinions, which were often quoted in Supreme Court opinions and elucidated some of the nation's most important legal standards.

10. 45 F.2d 119 (2d Cir. 1930).

11. 81 F.2d 49 (2d Cir. 1936).


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