We often get inquiries here at YTWWN regarding the bright line between one artist using another artist’s idea (generally legal!) and one artist using another’s expression of that idea (generally illegal!). Spoiler alert: there is no bright line! Only a fact-intensive analysis and comparison will provide a bit of clarity, and even that is subject to a judge’s (or jury’s) review.
If you were to go to trial in California (my local district) on this issue, the judge would tell the jury the following in connection with this idea/expression dichotomy:
“Copyright law allows the author of an original work to prevent others from copying the way or form the author used to express the ideas in the author’s work. Only the particular expression of an idea can be copyrighted. Copyright law does not give the author the right to prevent others from copying or using the underlying ideas contained in the work, such as any procedures, processes, systems, methods of operation, concepts, principles or discoveries.
The right to exclude others from copying extends only to how the author expressed the ideas in the copyrighted work. The copyright is not violated when someone uses an idea from a copyrighted work, as long as the particular expression of that idea in the work is not copied.”
See 9th Cir. Model Jury Instruction No. 17.3
The above is a mouthful, to be sure. But, in essence, it is saying that an idea is free to use while someone’s unique expression of that idea is protected.
This explains why one person using another’s content in a way that clearly takes the original idea (and would thus be what is known colloquially as a “rip-off,” depending on your definition of the term) may not be a violation of the Copyright Act.
Below we have an example of the interplay between idea and expression. Verdict?
- AttorneyScott ([email protected])
It looks like Quiksilver has again ripped off another clothing brand. See below: