Re: chess moves

On 04/28/2000, Michael J. O'Connor <mjoconor[_at_]erols.com> wrote in part:
>
> I'd agree that the "facts" approach should not hold water in
> this situation, and that the games are subject to copyright, at least
> in theory, but I'd have thought that the long tradition in the chess
> world of publishing a complete list of all moves in every tournament
> of note involves a course of dealing that in some way authorizes such
> publication. I don't know the theory of it well enough to discuss
> whether it would be implied consent (which could be negated by saying
> so) or fair use (but are the books devoted exclusively to Capablanca's
> best games, or Anand's, really fair use? or do Capablanca's estate or
> Anand get royalties?) or something else, but at some point perhaps the
> theory is less important than the reality: that's just the way we do
> it in the chess world. See Butch Carter's defamation action against
> Marcus Camby.
>
> Last June, I think it was, Tyler Ochoa gave us a thorough report
> and analysis of why recipes are not subject to copyright. Memory is
> hazy, but I think it was essentially based on a "facts" approach.
> IF SO, I was troubled by the lack of an exception for recipes more
> complex than a pound each of flour, sugar and butter. Vongerichten's
> book created a big splash in the world of haute cuisine, and I cannot
> believe that his recipes were all functionally equivalent to a
> telephone directory. I think what really goes on with recipes is
> just that we need to have a rule, in this world the rule is that
> recipes cannot be copyrighted, and there is just simply too little
> involved with most recipes to justify any exceptions. I think this
> is the de minimis approach. Or else it's course of dealing. But
> try telling a 4-star chef he's not creative. Apologies to Prof.
> Ochoa if I have misremembered his disquisition -- if I were more
> adept with the archive, I'd have looked it up.
>
> At any rate, can anyone refer me to a law review article or section
> of a treatise that discusses the area where the "facts" approach, the
> merger doctrine and the de minimis approach all seem to coincide?

     It is important to distinguish two rationales for limiting copyright protection. The first principle is that "facts" are not copyrightable because they are not original. The second principle is that "ideas" are not copyrightable, EVEN IF THEY ARE ORIGINAL, because it would impose too great a cost on the public welfare if ideas could be subject to copyright protection. This is the same value that informs the First Amendment; ideas must be free for everyone to use. [The same principle underlies the denial of copyright to the functional aspects useful articles.]

     Ideas become intellectual property only in two circumstances: ideas that are kept secret can be trade secrets, but only so long as they are unknown to and not reasonably ascertainable by lawful means by competitors; and ideas (reduced to practice) that are useful, novel and non-obvious may be patented. The point is that ideas may be freely copied (even if they are original), unless they are secret and one has promised not to copy them (or has used improper means to obtain access to them); or unless they meet the much more rigorous standards of patent law.

     So even if the moves in a chess game are original, the moves are not copyrightable, because to do so would be to give the first person to make the move the right to prevent others from copying the move. That would defeat the whole purpose of the game, which is to pit contestants in a game of strategy. If certain moves permitted by the rules of the game are off limits because they are copyrighted, it certainly would restrict the ability of people to play the game.

     As for the recipes, the same principle applies: it is in the public interest for all recipes to be in the public domain, so that everyone can enjoy them. A recipe is a useful article [it exists to be eaten]; the functional aspects of the useful article cannot be copyrighted. It is a public policy judgment that chefs do not need the financial incentive of exclusivity to encourage their creations. A recipe can be a trade secret, so long as it stays secret [the Coke formula]; and a useful, novel and non-obvious recipe could be patented [at least in theory; I don't know if there is an exclusion for them]; but you would have to prove its utility, novelty and non-obviousness, and you would get only 20 years of protection instead of life+70.

     The merger doctrine states that where there is only one way (or a limited number of ways) to express an idea (or a fact), then the expression describing the fact/idea is not copyrightable either, because to do so would be to effectively protect the idea, which would violate the idea/expression dichotomy. Thus, a narrative account of a chess game would be copyrightable as expression; but in a mere listing of the moves in a standard format, the expression and the idea would be said to "merge."

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Mon May 01 2000 - 19:41:43 GMT