THE IDEA AND EXPRESSION DICHOTHOMY

WHAT IS AN IDEA? 

It is a thought or collection of thoughts that generate in the mind. An idea is usually generated with intent, but can also be created unintentionally. Ideas often form during brainstorming sessions or through discussions. It is also an opinion or belief.

Section 102 (b) of the United States Copyright Act states:

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 is described, explained, illustrated or embodied in such a work. Ideas, methods, concepts, systems and devices are not entitled to copyright protection.

This language means that no one can monopolize an idea or subject matter under a claim of copyright. Can you imagine if the people who were the first to write stories about a girl wanting to play basketball or about a boy and a girl falling in love were able to stop everyone else from writing stories about those subjects? It would make it really hard to create original works and would defeat the purpose of the copyright law, which is to promote the progress of the arts and to secure for the public the benefit of authors' creative activities.

WHAT IS AN EXPRESSION? 

The words you use to tell a story, the picture that you paint, and the lyrics to a song you wrote are all types of "expression." Until you set these things down on paper or in a recording, they are nothing more than ideas.

Copyright laws do not protect you from other people who may copy your ideas. As a practical matter, it is very difficult to determine who may have had an idea first. It is also difficult to establish the specific content of your idea if it is not in a form that someone else can read, hear or see. Putting your unexpressed ideas into tangible form provides a set point from which the time begins to run on your exclusive rights over the work.

Through both court decisions and specific language in the Copyright Act of 1976, the scope of copyright has been limited to particular expression of an idea, not the idea that underlies that expression. Although the work itself may be protected, the idea behind it is not. For some copyright works people say that it is the expression of an idea that has copyright protection rather than the underlying idea. However, the borderline between expression and idea is very difficult to define - ultimately only the courts can do this. 

A traditional concept is that copyright protects the expression of an idea but not the idea itself. This concept has been highly developed by US courts. The requirement that a work must be put into a tangible form is one of the determining factors. This will be of great importance even if the author is apparently unconscious of what is actually being created, and the control of arrangements whereby the work is produced is left to another.

In Donoghue v Allied Newspapers, Farwell J stated, „A person may have a brilliant idea for a story, or for a picture, or for a play and one which appears to him to be original; but if he communicates that idea to an author or an artist or a playwright, the production which is the result of a communication of the idea to the author or the artist or the playwright is the copyright of the person who has clothed the idea in form‟. In Donoghue, a „ghost writer‟ wrote up the experiences of a successful jockey. It was held that copyright was owned by the newspaper employing the journalist who had produced the articles purportedly by the jockey, and not the jockey, who simply recounted his experiences, but did not commit them to writing. Farwell J stated that, If the idea, however original, is nothing more than an idea, and is not put into any form of words or any form of expression such as a picture, then there is no such thing as copyright at all.

In Wiseman v George Weidenfeld & Nicolson, the plaintiff had been a helpful critic and adviser in assisting the second defendant to turn a novel into a play. He had not written any dialogue and, whatever his degree of artistic involvement, could not be said to be a joint author. The courts have distinguished between the situations where a person has ideas and is then commissioned to produce work, but, in each case, a work has been made subject to contract or under equity.

When the idea can be expressed in only one way, then the courts consider the idea and expression to be merged and copyright will not protect the expression either.  Copyright also will not extend to circumstances when the expression embodied in the work necessarily flows from a commonplace idea, known as “scenes a faire,” meaning “scenes that must be done.”