RE: Re: Protecting Ideas

John Noble wrote concerning Larry Rosen's cake-recipe haiku:
> I thought it was intended as an original expression of the idea of a
> work outside the scope of copyright protection -- an obviously
> self-defeating exercise.

I'm trying to parse this under copyright law to see if you think I do--or don't--own a copyright on my 17 syllables. :-)

> The very fact that it might be taken for poetry, or an illustration
> of a point of law, belies the notion that it isn't protected if it's
> a recipe. The availability of copyright protection can't depend on
> whether the idea expressed is artful or banal. There are other ways
> to write your recipe -- "Be sure to preheat the oven. Pour the batter
> in greased cake pans." It's original enough. So's yours.

I agree that you also deserve a copyright, regardless of the size of your recipe.

So now, having seen my work and intentionally found another way to write it, have you created a derivative work of my haiku? Do you own your original recipe outright, or can I sue you for infringement because you created and distributed a derivative work? Can I stop you from warning people to grease the pans?

I'd like to relate this to copyrights in computer software, food recipes being less economically interesting to me. There are lots of folks in the software world who believe that someone owns copyrights on industry standard specifications for how to do useful things, and who then believe that anyone who reads the specifications and who necessarily copies (some of) their expressive words to implement those banal ideas in written code or computer documentation has created a derivative work. [Sun's previous attempts to control Java through copyright on its written specifications are frequently-cited examples of this notion.]

I fear a world in which a published cake recipe isn't available to the commons for baking and eating and improving, and yet I want to protect my haiku from copyright infringers like you. (Just kidding.) That's why I challenge attempts to use copyright for "protecting ideas" (as the original writer here put it) but I'll fight to "protect expressions."

It is often difficult to distinguish between these two with computer software, cake recipes, and bumper stickers. But § 102(b) makes it clear that copyright protection isn't paramount when it comes to ideas.

/Larry Rosen

> -----Original Message-----
> From: jfnbl[_at_]earthlink.com [mailto:jfnbl[_at_]earthlink.com]
> Sent: Tuesday, January 30, 2007 7:41 PM
> To: CNI-COPYRIGHT -- Copyright & Intellectual Property
> Cc: Lawrence Rosen
> Subject: Re: [CNI-(C)] Re: Protecting Ideas
>
> At 5:20 PM -0500 30/1/07, Lawrence Rosen wrote:
> >As in real life, in copyright law size isn't everything; in fact
> >it's not much. A haiku containing 17 syllables in the pattern 5-7-5
> >would be copyrightable subject matter under 17 USC 102(a), but the
> >same number of syllables in a cake recipe probably wouldn't under 17
> >USC 102(b). ["Preheat the oven. Be sure to grease the cake pans.
> >Pour batter in pans."] Perhaps these 17 syllables are copyrightable
> >in the context of *this* email simply because it is intended to be a
> >haiku and not really a cake recipe?
>
> I thought it was intended as an original expression of the idea of a
> work outside the scope of copyright protection -- an obviously
> self-defeating exercise.
>
> The very fact that it might be taken for poetry, or an illustration
> of a point of law, belies the notion that it isn't protected if it's
> a recipe. The availability of copyright protection can't depend on
> whether the idea expressed is artful or banal. There are other ways
> to write your recipe -- "Be sure to preheat the oven. Pour the batter
> in greased cake pans." It's original enough. So's yours.
>
> Everyone uses recipes as the example of unprotected expression, but
> while the merger doctrine forecloses copyright protection for a list
> of ingredients, even if it's an utterly unique and incredibly
> creative recipe that calls for idiosyncratic measures (grams and
> grains mixed with ounces and milliliters) of 50 exotic ingredients (a
> trade secret for sure), the narrative directions should be protected
> against verbatim copying even if they are so spare that they defy
> further reduction ("mix and bake at 350 deg. for 45 min.") because
> minimalism is original, unless it's copied from a protected work..
>
> John Noble
>
> >In the context of a bumper sticker, does the size of the expressive
> >message matter for its copyrightability, or only the expressive
> >message itself?
> >
> >I think this on a bumper sticker would be copyrightable even without
> >words: :-)
> >
> >But I don't own the idea of a smile, or the right to prevent someone
> >else from coming up with that idea for a bumper sticker.
>
> >/Larry Rosen
> >
> >From: CNI-COPYRIGHT -- Copyright & Intellectual Property
> >[mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of akeshet[_at_]imj.org.il
> >Sent: Monday, January 29, 2007 2:50 PM
> >To: CNI-COPYRIGHT -- Copyright & Intellectual Property
> >Subject: [CNI-(C)] Re: Protecting Ideas
> >
> >I thought the shortest poem protected by copyright was Fleas, by
> Anonymous:
> >
> >Adam
> >Had 'em.
> >
> >Well, actually, I recall this one used as an illustration of "just
> >how much is the whole work, or the heart of a work,"
> >when considering whether or not a quotation is a fair use.
> >
> >Amalyah Keshet
> >The Israel Museum, Jerusalem
> >
> >From: CNI-COPYRIGHT -- Copyright & Intellectual Property on behalf
> >of Michael Graham
> >Sent: Sat 27/01/2007 03:00
> >To: CNI-COPYRIGHT -- Copyright & Intellectual Property
> >Subject: [CNI-(C)] Re: Protecting Ideas
> >Not legal advice, and perhaps apocryphyl, but unless the design is
> >entitled to protection as a work of visual arts, a short enough
> >phrase to be printed on a bumper sticker probably is not sufficient
> >to be entitled to copyright protection. I recall an old truth that
> >the shortest legally copyrighted work was a 12 word "poem" by
> >Archibald MacLeish: "Pity the poor hippopotamus, That cannot tell
> >its top from its bottomus." But I could be wrong.
> >
> >Michael R. Graham
> >From Chicago
> >
> >-----Original Message-----
> >From: CNI-COPYRIGHT -- Copyright & Intellectual Property
> >[mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of Larry Jenks
> >Sent: Wednesday, January 24, 2007 4:00 PM
> >To: CNI-COPYRIGHT -- Copyright & Intellectual Property
> >Subject: [CNI-(C)] Protecting Ideas
> >I am a newbie, and although I have read many posts from this
> >website, I really have no background/experience in the area of
> >intellectual property rights. But I'm pretty sure this is an easy
> >question...
> >
> >I have come up with an idea for a t-shirt or a bumper sticker. The
> >value of the idea is really in the words used to convey the idea,
> >not the graphic design of the words and the way they are
> >printed/colored/shaped or otherwise composed or presented. Is there
> >any way to protect this idea?
> >
> >Larry D. Jenks AIA, CSI, NCARB
Received on Thu Feb 01 2007 - 03:00:41 GMT