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 youre confused by the distinction between idea and expression, youre 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 Amendments 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.
Copyrights 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 anothers otherwise copyrightable expression, such
copying is not an infringement; and
3. blank formsi.e., forms used for the recording of information rather than for
explanationare not eligible for copyright.
The rst 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).
Its 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, ctional 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 afdavit, 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 didnt 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 elds of insurance and commerce
the use of specic 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 plaintiffs 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 nite range of ways to express an underlying subject matter has also been
employed in the eld 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 reected 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
betweenprotectable expression and unprotectable ideas. Copyright cannot protect
a fact or a group of facts. Copyright will not protect an authors work in the discovery
of facts, regardless of how hard the author worked to discover or arrange the
facts. Feist Publns, 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 dont create or author facts. They merely deduce or discover existing facts.
Copyright protects the creative works of original authorship. Therefore factsand
even speculations as to factsthat 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 anothers 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 nal offspring of Baker is its holding that blank forms are not
copyrightable. This is reected in the text of 202.1(c) of the Copyright Ofce
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 Circuits
view that blank forms may be copyrighted if they are sufficiently innovative that their
arrangement of information is itself informative).