Whenever a business creates any type of content, copyright infringement is a key concern, and it should be.
The cost of copyright infringement can be steep: for willful infringement, statutory damages can rise to $150,000 per copyrighted work, plus attorneys’ fees. Actual damages (i.e. the money the copyright holder loses due to the infringing work) can be even more. For example, the $7.4 million awarded to Marvin Gaye’s estate due to Robin Thicke’s “Blurred Lines” copyright infringement of Marvin Gaye’s ”Got to Give it Up.” Even if there is no clear-cut infringement, furthermore, businesses often have to bear the expense of defending against questionable copyright claims from aggressive copyright owners.
The safest strategy, therefore, is to avoid copying (even partly) another work altogether. It’s simply best not entering into the muddy waters of Fair Use. But what about using a work merely as inspiration?
Even the most original ideas borrow from old ones. As Voltaire put it, “Originality is nothing but judicious imitation. The most original writers borrowed one from another.”
Indeed, the very purpose of the Copyright Act (and the Constitution’s Copyright Clause) is to promote the advancement and diffusion of knowledge by incentivizing the creation and public dissemination of original works so others can build on top of those works and that knowledge.
For example, it is well-documented that Joseph Campbell’s “The Hero with a Thousand Faces” inspired George Lucas to write the movie “Star Wars” and that “Star Wars” directly inspired the television series “Battlestar Galactica.” The succeeding work would not exist but for the inspiration derived from the original work.
Therefore, not all copying is copyright infringement. Businesses can take “ideas” from protected works, whether it be advertising print, marketing campaigns, television commercials, or other original content. The (sometimes literal) million-dollar question is at what point do unprotectable ideas become protectable expression?
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When does inspiration amount to infringement?
Copyright law addresses this question in two ways: the “idea/expression” doctrine and the “merger” doctrine. First, copyright law does not protect “ideas,” that is, it does not preclude others from using the concepts or information revealed by another author’s work.
In fact, the Copyright Act explicitly states that “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”17 U.S.C. §102(b).
Second, copyright law will not protect expression if there is only one feasible way of expressing an idea. The expression essentially “merges” with the idea and, as such, is not copyrightable. “Ideas” and “merged expression” are thus excluded when comparing the similarity of two works. Indeed, they provide the basis for and boundary of permissible “inspiration.” The crucial question, therefore, is at what constitutes protectable expression? Case law, though not exactly clear, indicates that protectable expression consists of “a unique arrangement of ideas.”
First, the arrangement of ideas is sufficiently unique when the author includes enough non-predictable choices in the combination of those ideas.
For example, in Pampered Chef, Ltd. v. Magic Kitchen, Inc., the Court held that while the actual text of a company’s mission statement, slogans, and satisfaction guarantee for its catalogues are copyrightable, the concept of including those elements within a catalogue is not protectable. Including such concepts in a catalogue was as predictable as arranging telephone numbers alphabetically in a telephone book.
Such predictable and sometimes essential combinations, like the plot to cliché love story or the use of disguises, spy gadgets, and a femme fatale in a spy novel (called the “scènes à faire” doctrine in copyright law), are simply not protectable under copyright law. Other predictable elements and arrangements include historical or functional elements in architectural works; the use of certain kinds of characters, a game board, and a scorecard in a karate video game; and, the use of oyster houses, seahorse taxis, and sand dollar currency in a story about an underwater city. These elements flow predictably from the general theme or idea.
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Second, even when the combination of ideas is original or unexpected, moreover, only the specific arrangement of those ideas is protectable in much the same way that the particular arrangement of words in a poem is protectable but not the words outside of that arrangement.
For example, in Peters v. West, although rapper Kanye West used several of the same unprotectable elements of the plaintiff’s song (i.e. the title of the song, a reference to model Kate Moss, the use of a common maxim, and a tercet of commonly-rhymed words), because Mr. West did not use those elements in the same arrangement, the court found that Kanye borrowed ideas not expression.
In contrast, in Steinberg v. Columbia Pictures Indus., Inc., a federal court held that the defendant copied not just the ideas in an illustration (a small grid of New York from bird’s eye view), but also the plaintiff artist’s non-predictable arrangement of those ideas (the ornaments, facades and details of various buildings not native to the city block, the use of childlike, spiky block print, and the locations and size, errors, and anomalies of plaintiff’s shadows and streetlight).
Similarly, in Stillman v. Leo Burnett, a federal court concluded that while the plaintiff’s use of various ideas and elements indispensable to a silent commercial (such as using silence to attract the audience’s attention, black screens with white lettering, and a color screen at the end) was not protectable, the plaintiff’s unique arrangement of those elements in specific sequence was protectable.
As the above case law demonstrates, copyright’s operating principle for inspiration is this: one can freely copy others’ ideas and predictable arrangements; however, when the arrangement of such ideas and concepts is sufficiently unique and non-predictable, one cannot copy this “expression” without risking infringement. Upon creating any type of content, businesses should have procedures in place to ensure that inspiration does not amount to infringement.