The Myth of the Idea/Expression Dichotomy in Copyright Law

Abstract

as unaccompanied by a representation or thereof . . . ,,, a although he failed to explain how such an entity is possible. Only commitment to the idea/expression dichotomy would lead someone to hypothesize such an entity. Treating the of a work as an abstraction behind or apart from the idea's presents certain problems. In particular, many different ideas can be abstracted from a writing depending upon the focus of attention of the person doing the abstracting.74 Thus, a work has many different levels of intellectual content from the outline of the work as a whole down to individual statements or other creations. When a modern court uses the idea/expression dichotomy to determine which of these abstracted statements is protected by copyright it must necessarily impose its own value judgments. Furthermore, courts are no more helpful in their use of the term This troublesome concept 75 eludes definition. Dictionaries, reflecting common usage, state that an is act, process, or instance of representing in a medium. ' 76 Instead of following common sense, courts and commentators do not consistently treat in copyright doctrine as merely the embodiment of an in a tangible medium. Rather, courts and commentators usually distinguish from by examining the degree of detail, and development in the writing. 7 Such features of a writing as its style become protected elements of the writing, in contrast with the writing's idea. 8 tor against the copying, by others, of the original work, but does not confer upon him a monopoly in the intellectual conceptions which it expresses. Id. 72. E.g., Merritt Forbes & Co. v. Newman Inv. Sec., 604 F. Supp. 943, 949 (S.D.N.Y. 1985); Grove Press v. Greenleaf Publishing Co., 247 F. Supp. 518, 525 (E.D.N.Y. 1965); Uneeda Doll Co. v. P & M Doll Co., 241 F. Supp. 675, 677 (S.D.N.Y.), aff'd, 353 F.2d 788 (2d Cir. 1965). 73. Nimmer, The Law of Ideas, 27 S. CAL. L. REV. 119, 119 (1954). 74. See infra notes 167-79 and accompanying text. 75. Harper & Row Publishers v. Nation Enters., 723 F.2d 195, 204 (2d Cir. 1983), rev'd, 471 U.S. 539 (1985). 76. WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 439 (1986). 77. E.g., Harper & Row, 723 F.2d at 203; Gordon v. Weir, 111 F. Supp. 117, 122 (E.D. Mich. 1953), aff'd, 216 F.2d 508 (6th Cir. 1954). 78. E.g., Chuck Blore & Don Richman, Inc. v. 20/20 Advertising, Inc., 674 F. Supp. 671, 677-78 (D. Minn. 1987); Steinberg v. Columbia Pictures Indus., 663 F. Supp. 706, [Vol. 10:551 16 http://digitalcommons.pace.edu/plr/vol10/iss3/1 1990] IDEA/EXPRESSION DICHOTOMY Courts state that the particular expression79 or arrangement of words the author uses to express ideas is protectible 80 but the is not.1 However, not every embodiment of an is protected only certain expressions are protectible.82 Thus, when courts refer to the term expression in this context, they are actually referring only to those expressions protectible by copyright law. 3 Courts thereby produce an ambiguity when they use the term expression, or relate ideas to expressions, without making clear that not all expressions are protectible. Overall, courts are not consistent in their use of either or expression. 4 Some courts appear to use the term idea to refer to unprotectible abstractions.' 5 Other courts have used the term idea to mean any unprotected expressions in a protected writing.8 6 Expression is sometimes used by courts to mean any concrete embodiment of an (whether protectible or not).8 7 In another case the term appears to denote only the protectible elements in a writing (i.e., certain developments or treatments of the writing's subject matter). 8 s 712 (S.D.N.Y. 1987); Oliver v. Saint Germain Found., 41 F. Supp. 296, 299 (S.D. Cal.