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Unprotected “Ideas” vs. Copyrightable Tangible Expressions - Module 2 of 5

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Module 2: Unprotected “Ideas” vs. Copyrightable Tangible Expressions 


Copyright Protection: Ideas vs. Expressions

One of the fundamental principles upon which copyright law is built is the distinction between ideas and the expression of ideas.  Copyright law protects each original expression of an idea, but not the idea, theme or concept which underlies those works.[1]

For example, literature and folklore around the world is full of stories based on the theme of outsiders who enter communities threatened by malignant people or organizations and who rally the communities to battle and ultimately defeat the bad guys.  Each author who creates and expresses an original story based on that theme receives copyright protection for his work. However, no author has copyright law claim to the underlying theme.

Copyright law does not provide protection for ideas, concepts, principles or themes, as access to those intangible thoughts would impede creativity, investigation, and innovation. The Constitution established copyrights to promote improvements in science and art.  Granting monopoly rights controlling access to and use of ideas and the intangible thoughts that are the basis for creative work would undermine such improvements.  Thus, the requirement of expression is necessary for the key objective of copyright law.  It enables the creators of new works to protect their expressions of ideas while permitting others to express those same ideas in their own ways.


To be subject to copyright protection, an original work of authorship must be placed into a “fixed” form.[2]  This means that the creative work has been presented in a “tangible medium of expression” which is stable and permanent.  The work must be expressed in a form and medium in which the work can be presented, reproduced and communicated in a format which is more than a transitory expression of the material.

For example, if the work is offered in digital format, it must be stored in a form which can be viewed and communicated more permanently than a mere transitory image visible on a screen.  The work must be stored on some type of material device such as a portable storage device, computer hard drive or cloud storage service.

The requirement of fixation contemplates continuing development and evolution of technologies and devices for creating, storing, accessing and distributing copyright protected materials.  The fixation requirement is met so long as the content can be accessed and shared directly or through use of any available device.

The fixation requirement for copyright protection establishes copyrights for the author only when the work has been expressed in essentially final form.  If the work is viewed by its creator to be incomplete or a work in progress, it is not yet eligible for copyright protection. Thus, draft versions of works which continue to evolve are not yet ripe for copyright protection.  Copyright law is not intended to protect the working drafts of creative materials but is, instead, directed only toward those works that have matured into their final forms.

Identification of Protectable Work

An original work of authorship protectable under copyright law is distinct from each physical manifestation of that work.  For example, when a photograph is copyrighted, it is the specific expression of the visual image captured that is the protectable work. 

The initial printed photograph of that image is the first expression of the work, but there can be many others. Multiple prints reproducing the original image can be created, and the image can be placed on merchandise.  All those other versions of the original copyrighted work are derivative works.  It is the owner of the copyright of the original work who has the right to create derivative works based on the original,[3]  as the protectable work for copyright purposes is the original image expressed in any medium, not merely the photograph that captured the image and fixed it in tangible form.

          This distinction between the copyrighted work and diverse physical manifestations of that work manifests itself in the sale or transfer of the work.  When a copyright owner sells a physical manifestation of the work, such as a single copy of a photograph, the copyright owner is selling only that one manifestation of the work, not the intellectual property rights associated with the work. So, for example, the purchaser of the photograph cannot then reproduce or publish that photograph for commercial purposes. The buyer is the owner of the picture, but the creator keeps the underlying intellectual property.

Distinguishing between Idea and Expression

The United States Supreme Court first addressed the distinction between copyrightable expressions of ideas and the ideas themselves in Baker v. Selden.  In that case, Selden developed an accounting system which included use of certain forms for documenting accounting information.  Selden wrote a book describing the system, including use of the forms.  Baker wrote a book describing the Selden accounting system and included blank copies of the Selden system forms in his book.  Selden claimed that Baker’s publication of the forms constituted copyright infringement.  The Supreme Court concluded that, although Selden could copyright his book describing his system, he could not copyright the system itself.  The Court determined that the forms were part of the system, thus Baker’s incorporation of those forms into a book describing the Selden accounting system was not copyright infringement.[4]  As part of the Selden system, the forms could be presented in Baker’s copyrighted book describing the Selden system.

The Supreme Court concluded that Selden’s accounting system was an idea or concept.  Selden’s book describing that system was a tangible expression of the idea.  Accordingly, Selden could copyright his book but not the system which it described. This analytical framework enables the creator of a new theory, for example, to copyright books describing the theory or videos that explain and support the theory, but not the theory itself.  Anyone could, without the permission of the developer of the theory, write about the theory and use the theory in those works. 

Once described to the world, the theory is part of the public domain, something that all can use, but no one can own.  If other authors write books discussing the new theory, the original creator of the theory could not claim that those other books infringed on any of his or her rights associated with the theory itself or the initial work discussing the theory. If, however, one of the subsequent authors copied language from the original book (other than language directly associated with the details of the new theory), that could be copyright infringement.

A creator of a concept or theory can, however, create a variety of different expressions of the theory, such as books and videos, which are eligible for copyright protection.  Copyright law would permit others to create copyrightable works that are expressions of the original theory.  In this way the person who created the theory has the right to exploit the theory, but so, too, do other people.  This result is consistent with copyright law’s goal of fostering creative work and innovation.

Just as ideas, theories, and concepts cannot be copyrighted, facts are also outside the scope of copyright protection.  One cannot copyright a fact of nature or collection of data. Facts are knowledge, not expressions. The reason for this is simple. If discoverers of facts or information could copyright that new knowledge, exercise of their rights would likely inhibit and impede additional creative work and the dissemination of knowledge.

          If facts are set forth in a creative way, the expression can, of course, be copyrighted. For example, the populations and population rankings of all 50 states cannot be copyrighted. However, if a map is created that displays population ranking by a color-coded system that makes it intuitive and easy to learn and understand, the map is a creative work and can be copyrighted.

Application to Computer Programs

To illustrate the distinction between an idea and an expression, let’s consider computer programs.  In most computer software, there are significant sections of code which are not unique to any one program but appear in many programs.  Those more generic portions of code are commonly necessary to provide some universally required functionality.  They represent and enable operation and thus resemble an idea or principle more so than an expression of creativity insight. These portions of generic code are routinely embedded with sections of code that are original and enable the software to perform specialized function. For example, portions of computer code that are not original but are necessary to ensure compatibility with industry technical standards or interconnectivity with other programs and devices are routinely embedded in copyright protected software.[5]    

The entire program receives copyright protection even though portions of its code are not original and do not truly represent an expression of creativity.  If infringement by copying the code is alleged, the court must determine which elements of the overall software product have been copied.  If the copying was confined to generic, widely applied elements of the product, there is no infringement. Infringement will be found only if the copying involves distinctive elements of the program which are unique to this software.

 That elements within copyrighted software are widely necessary and thus commonly used in many different works has long been recognized by copyright law. These “stock” elements are used by multiple parties in diverse works and such use is not deemed to be infringement. Just as “stock” scenes in theatrical plays have always been commonly used to advance the movement of the plot, today, stock sections of computer code enhance the effectiveness of computer software products.[6]

Generally accepted computer industry technical standards or other external factors also often lead to widespread use of specific computer code sequences.[7]  In some instances, common computer code sequences are even encouraged to promote compatibility among diverse software and hardware products.[8]  In many contexts, it is thus common for many different copyrighted works to incorporate elements that also appear in a variety of other works copyrighted by other parties.

 Look and Feel      

Most copyright disputes involve claims that alleged infringers copied copyright protected material.  With the development of the computer industry, another form of copyright infringement claim has emerged, where the alleged infringer copies, instead, the graphical interface the software presents to users.  In these instances, there is no claim of direct copying of code. The contention of the copyright owner is that the infringer created original code that duplicates the “look and feel” of the graphical interface presented by the copyrighted software.  The alleged similarity is in the ways in which the computer programs interact with their users.

It is common for alleged infringers to respond that they have merely copied the ideas behind the presentation, since ideas are not protected. While the design of a website may be copyrighted, for example, the concept of using bluish background colors is a mere idea.

The generally accepted approach to these disputes is an interpretation which recognizes that copyright owners have rights that extend beyond the “literal” elements of their protected computer programs.[9] Copyright law also protects certain “non-literal” elements of computer programs, including the appearance and sound of user interfaces. Precisely where to draw the line between a concept and a tangible design is a complex question.

The most widely applied analytical approach for evaluating “look and feel” cases was developed by the Second Circuit Court of Appeals in Computer Associates International, Inc. v. Atari.  The Second Circuit concluded that disputes involving copying of non-literal elements of software, such as user interfaces, should be resolved based on comparison between the computer codes of the competing software products.[10]  Only if the code used by the allegedly infringing product is substantially similar to that of the original product, then there is infringement.

This approach is similar to “derivative work” analysis. The approach treats “look and feel” disputes similarly to assessments of whether one work is derivative of another copyrighted work.  If one can reasonably conclude that the new software duplicates the look and feel of another product, it can be considered a derivative work of the original product.

The key lesson from the “look and feel” cases seems to be that the more similar the look and feel of two products, the more significant analysis of their underlying computer code becomes.  If a software developer creates a product similar in look and feel to that of another developer, it is important that the new product developer strongly distinguish the underlying computer code from the original.  The more distinctive the underlying code, the greater the likelihood that a court will excuse the similarities in the look and feel of the products. 

Copyright disputes involving the look and feel of computer programs are significant for the software and digital media industries.  Commercial users may not be aware of the intricacies associated with the computer codes they use, but they do have substantial interest in the audio and visual interfaces presented by software and media content. The ability to own and control that interface thus has substantial commercial value and significance.

Unique Method of Expression

In some cases, there may be few possible ways to express an idea or concept.  Parties trying to express that idea may not have real options or choices.  If there is only one way or a limited number of ways to express an idea or concept, then the expression of that idea is not eligible for copyright protection.[11] The reason is that this would make it impossible for anyone else to access or make use of that idea. The party who first expressed the idea would thus have total control over its use.  Copyright law is not intended to block access to ideas, but to encourage creation of new materials.

Consider the case of Incredible Technologies, Inc. v. Virtual Technologies, Inc, involving two golf video games.  Not surprisingly, the two games had similar look and feel.  The court determined that there would inevitably be visible similarities between games depicting the same sport.  Those similarities were the result of limitations on options available for portraying golf in the video game environment, not the result of copying of creative expression.[12]  A similar result was reached by a district court in Maryland when it was asked to review similarities in two video games, “Meteors” and “Asteroids.”  In that case also, the court found that the similarities in the two video games were the result of limited options rather than copying.[13]

Still, even when two games have similar settings and themes, there can still be copyright infringement. Consider the various games that involve some character gobbling up and eating objects on-screen (e.g., “PAC-Man”).  Although significant similarity among those “gobbler” games is expected, if those similarities involve distinctive artistic elements of the game, infringement can occur.  In Atari, Inc. v. North American Philips Consumer Electronics Corp,[14]  there were similarities between the look and movement of the “gobbler” characters in the two games.  The court determined that there was infringement to the extent that the similarities involved distinctive artistic aspects of the characters and their movements.

          In the early days of the development of the computer industry, disputes arose over copyrights for use of basic words and symbols associated with computer commands and operations.  For example, efforts were made to copyright basic computer commands such as “save” and “delete.” The courts denied copyright protection for the limited number of words and symbols that can most easily and effectively communicate computer commands to users.[15]

Utilitarian Works

          Copyrights are for creative works, not for inventions. Thus, products or devices that perform useful functions (such as calculators, computers, utensils, appliances, etc.) are not eligible for copyright protection.[16] Instead, they can be patented to protect the intellectual property of the inventor. [17] If however, those utilitarian products or devices include expressions of distinction and creativity (such as a distinctive art design on the handle of a knife), those creative elements can be copyrighted.[18] Note, though, that computer software has been found to be eligible for copyright protection, even though software often has a useful function.[19]


There is sometimes tension between the rights of copyright holders and the need to create standardization across different products for the purposes of user convenience and interoperability. To establish standardization, there is incentive to duplicate, at least, the “look and feel” of copyrighted material. However, such duplication can constitute copyright infringement.

In Lotus Development Corp. v. Paperback Software International & Stephenson Software Limited, the defendant created a software spreadsheet program that simulated the appearance and interactivity of the already existing software, “Lotus 1-2-3.”  The defendant argued that standardization of the appearance and interactivity of spreadsheet software would foster standardization and facilitate innovation through development of ancillary software products.  The court concluded, however, that the conduct engaged in by the defendant would ultimately undermine innovation by weakening the strength of copyright protection, thus discouraging future creative efforts.[20] The court was not persuaded that the potential benefits of standardization are sufficient to justify limitation of the scope of basic copyright protections.


          Copyright law’s emphasis on the distinction between an idea and the tangible expression of that idea is a critical tenet of copyright law.  If copyright law did not limit its focus to the tangible expression of ideas and concepts, proprietary rights would be asserted over generalized concepts and themes.  Active creative development and innovation would be very difficult to sustain, as new parties would find themselves barred from using important fundamental principles and ideas.  The copyright law requirement of a tangible expression of an idea before copyright rights can be enforced is vital to ongoing creativity and innovation. 



[2] 17 U.S.C. §102

[5] Bucklew v. Hawkins, Ash, Baptie & Co. LLP 329 F.3d 923 (7th Cir. 2003) and Manufacturers Technologies, Inc. v. Cams, Inc., 706 F. Supp. 984 (D. Conn. 1989)

[7] Plains Cotton Co-op. Association of Lubbock Texas v. Good pasture Computer Service, Inc., 807 F.2d 1256 (5th Cir. 1987) and Computer Management Assistance Co. v. Robert F. DeCastro, Inc., 220 F.3d 396 (5th Cir. 2000)

[15] Alexander v. Haley, 460 F. Supp. 40 (S.D. N.Y. 1978)