Re: ELDRED

On Wed, 29 Jan 2003 08:09:13 -0500, Robert A. Baron wrote:
>At 05:29 PM 1/27/2003 -0500, Joseph Pietro Riolo wrote:
>>Ideas are also uncopyrightable. (There are eight categories that are not
>>copyrightable.) If I visit your website and look at your different
>>images, I will be able to copy the ideas that are embodied in the images
>>and create my expressions based on the copied ideas.
>
>How does one distinguish between an idea and an expression embodied within
>an image or work of art? It would seem that in art the idea and the
>expression of that idea are integral with one another and consequently
>inseparable.

     While separating the idea and expression in a work is often extremely difficult, I disagree with the assertion that they are "integral with one another." For example, I have seen hundreds of paintings of landscapes, many of them of the same subject, yet each differs greatly in its presentation of the subject. These paintings may have shared common ideas, but they are very different expressions.

     In the rare case where an idea and expression cannot be separated, the expression is unprotected. This doesn't occur often, particularly in fictional or imaginative works. It has been held to have happened in computer software, for example, where certain code is required to make the program function. In these cases, even admitted copying of these mandated functional elements are not infringing. Similarly, if a particular expression is required in order to set the scene, it will be unprotected. If, for example, I am writing a play about Queen Victoria, another author cannot complain if I use her as the subject, nor can complaints be made about factual descriptions of her life as long as I re-express them.

>
>This, incidentally speaks to Ruth Bader Ginsburg's majority opinion in
>Eldred v. Ashcroft. She says that copyright is immune from First Amendment
>challenges because copyright only protects expression, not ideas. This may
>be so in written work (don't ask a poet to concur), but it is outright
>wrong for visual works.
>
>How does one communicate the "idea" of a painting without showing or
>illustrating the painting? "On a turbulent sea, the nighttime storm flashes
>lightening everywhere, and the sloop founders in the distance as the weary
>crew takes to the lifeboats." Perhaps that will evoke an image, but,
>certainly not the one about which I'm thinking.

     Your description does convey some of the ideas contained in the painting to which you refer. I do not need to see the painting to appreciate these ideas you are describing that are extracted out of it. Equally, the ideas in a painting become available whenever it is seen. When an artist looks at the painting, he or she may note a particular technique used (an idea) and incorporate that technique into new works. If a poet sees the painting, poems inspired by the ideas in the work may result. When a law professor looks at it, an idea for a lecture may be developed (I don't necessarily recommend this -- my students thought I was nuts). In each case, ideas are being extracted free from any claim of copyright in the expression.

     At the same time, if you want to convey all that comprises a work, a copyright problem will result. To convey the totality, the expression must be included with the ideas. Consequently, unless fair use applies, an infringement will have occurred. This is true for the visual arts you discuss, but is equally true for music, plays, poems, novels, and even computer programs.

-- 
Ralph D. Clifford
Professor of Law