Figuring out the difference between ideas and expression is not always as clear as one might consider.
Solution (BAKER v. SELDEN 212 F.3d 1210 (11th Cir. 2000))
In this case, Charles Selden wrote a book called Selden’s Condensed Ledger or Bookkeeping Simplified. The book describes Selden’s System of bookkeeping and included illustrated examples of the system. The book was mostly illustrations containing just 650 words of text. Selden attempted to sell his book and his method of accounting to the US Treasury, but was never able to get much traction on his ideas. After Selden’s death, Baker published a book dealing with bookkeeping methods which was very similar to Selden’s. His book was successful and sold in 40 countries.
The Selden Estate sued for copyright infringement. But the Supreme Court held that there was no copyright infringement because copyright only covers an author’s unique explanation of a system or method not the actual method itself. It also doesn’t prevent others from using or reproducing forms. Because if protection was extended in these cases, then it would too similar to a patent. Here the plaintiff could now show that Baker copied his original expression of his idea. That is the copying of the 650 words or the actual forms in the book itself.
Baker versus Selden has been very influential in software copyright cases, for example back in the 1980s, almost every computer had Lotus, a spreadsheet program that enabled users to perform accounting on a computer. Lotus had a menu of commands and it would also let users write macros to create shortcuts or systems of using those different menu systems. After Lotus was released, a company called Borland released its own spreadsheet program called Quattro and Quattro Pro in which it also included programs that were virtually identical to Lotus’s entire menu tree.
The idea here was that you would be able to transfer the same skills from Borland if you had used that previously. But the Supreme Court held that the menus commands were not copyrightable because they were a method of operation. The commands were merely the method by which the user operates the program. The commands were merely the method by which the users operated the program. The court reasoned that you can’t copyright the buttons of a VCR like play or pause so it wouldn’t make sense to allow you to copyright the menu hierarchy or menus and marcos in a certain piece of software.
When To Sue A Thief for an Idea
There is one very limited exception to the general rule that you can’t sue someone for stealing an idea. In California at least, there’s is something called a Desny claim. It stems from the case of Desny v. Wilder. Now you can’t copyright an idea, but sometimes you can get contract protection for an idea, sometimes you can give someone an idea under the circumstances that give rise to a contract such that if they use your idea without paying you, they have breached a contract. This is a very rare circumstance, it was basically invented to protect the thing that only happens in Hollywood, like you making a pitch to a director or a studio and instead of them hiring you and paying for your idea, the studio goes out and makes the idea themselves.
Derivative Works
A copyright means that only the author has the right to copy the work but one of the other important rights the author also has, is the right to create what are called derivatives. A derivative work is something that was created using a substantial part of a preexisting work also known as the adaptation right. The US Copyright office has a handy list of things that are often considered derivative works, which are fully protected by copyright law.
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a motion picture based on a play or novel
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a translation of a novel written in English into another language
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revision of a previously published book
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sculpture based on a drawing
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a drawing based on a photograph
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a lithograph based on a painting
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a drama about John Doe based on the letters and journal entries of John Doe
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musical arrangement of a preexisting musical work
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new version of an existing computer program
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an adaptation of a dramatic work
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a revision of a website
A new copyright can be claimed for the additional material added to the preexisting copyrighted material, but the new copyright will not affect the copyright status, scope or duration of the underlying copyrighted work on which it’s based. The original copyright author is given exclusive rights to “prepare derivative works based upon the copyrighted work”. It is considered copyright infringement to make or sell derivative works without the permission from the original owner, changing the pitch or adding effects to a copyrighted music to play it on YouTube is still copyright infringement, playing it yourself is also still copyright infringement.
The standard for derivatives states that a derivative work is a work based upon one or more preexisting works. If the new work has recast, transformed, or adapted the original, it is entitled to its own copyright protection. You can also create a derivative based on a work that is in the public domain, the law will not give the person copyright in the thing that is now in public domain, the new work based upon the thing in the public domain is only protected to the extent that the derivative work added new material that appears for the first time with that new work. They get a thin copyright over the new portions that were added.
Copyright Infringement
Generally speaking you infringe copyright by violating one of the exclusive rights that are guaranteed by the Copyright Act. You can infringe by making an exact copy or by making something that is similar to and based on the original work. You can infringe copyright by making a derivative that isn’t exactly the same but relies on the original work. You can violate copyright by simply taking a small amount of very large work.
To prove copyright infringement, a plaintiff has to show “substantial similarity” between the original work and the infringing work. But on the internet generally, that’s not the big issue. The normal use case is that someone literally copies portions of someone else’s work. There is usually no need to talk about the complicated test of “substantial similarity” because they are literally the same.
When works of art share the same idea, they’ll often be similar in the layman’s sense of the term. The key question always is, are the work substantially similar beyond the fact they they depict the same idea or same subject matter as referenced before.
Creative Commons
If you want to steer clear of copyright infringement issues, there are a number of places on the internet where you can go to find copyrighted works that you can actually use for free. This is known as a Creative Commons license, which is a public copyright license that can allow for the free use of an otherwise copyrighted work. Creative Commons gives authors 5 options on how their work can be used by others. Not all CC’s are necessarily “free” in all contexts for all purposes.
The first is the attribution license, most CC licenses generally require that you give the original author attribution. This means the following things,
- if the copyright owner has incorporated a copyright notice then you must use that notice or symbol
- you have to cite that person’s name, internet handle and if possible a link to their public page
- you have to cite the license that the work is under
- if you create a derivative work, you should state he name of the original work upon which it is based
The second is the non-commercial license, it gives you the right to use the work but only for non-commercial purposes. This generally means that you cannot sell the original work or sell your own work that includes the original material.
Third is the no derivative works license, it allows you to copy, distribute and display on the work verbatim but does not allow you to remix or create derivative works of the original material.
Fourth, the share alike license which allows you to distribute derivative works under a license that is identical to the one governing the original work.
The fifth is the Creative Commons Zero also known as CC0, it stands for “no rights reserved.” According to creative commons, this “enables scientists, educators, artists and other creators and owners of copyright- or database-protected content to waive those interests in their works and thereby place them as completely as possible in the public domain.”