NATALIE FET

THE IDEA/EXPRESSION DICHOTOMY: COPYRIGHT LAW IN SEARCH OF A

THEORY OF ART

Ce n’est pas une pipe!

René Magritte (inscription on a painting depicting a pipe)

Introduction: Limitations of Copyright Law’s Protection of Works

of Art

If we ask a lay observer what subject matter copyright

protects, the answer will undoubtedly be “the art.” Such an

opinion is not as superficial as it might seem. In the words of

The Trademark Cases, copyright protects “the creative powers of

the [human] mind.”1 It remains true to that purpose in extending

its protection to the extreme (and purely hypothetical) cases of

unintended re-creation, where Artist 2 inadvertently duplicates

what has already been created by Artist 1, as long as Artist 2

1 "[W]hile the word writings may be liberally construed, as it has been, to include original designs for engraving, prints, &c., it is only such as are original, and are founded in the creative powers of the mind. The writings which are to be protected are the fruits of intellectual labor, embodied in the form of books, prints, engravings, and the like." Trade-Mark Cases, 100 U.S. 82, 94, 25 L.Ed. 550 (1879) (emphasis in the original).

was not familiar with the work of Artist 1. The only thing that

copyright does not tolerate and seeks to punish is an act of

actual copying – precisely for its lack of creative labor. Thus,

taking our previous example, the same work of art can be either

actionable under copyright law (if Artist 2 actually copies what

Artist 1 created), or non-actionable (if Artist 2 independently

creates it). What could be closer to the true spirit of art?

However, the further we study these questions and the deeper we

look into the problems they raise, the more inconsistencies

transpire between contemporary art theory and practice and

copyright law’s current understanding of art.

First, copyright’s protection of creativity is limited to

fixed original expression.2 But modern art, as it has developed

over the past century, has been manifesting itself through less

and less expression, in copyright terms. Extreme examples of

minimalist art are completely devoid of it. On April 28, 1958 the

French artist Yves Klein held the exhibition “La Vide” (The Void)2 17 U.S.C. §102(a) (“Copyright protection subsists, in accordance with this title, in original works of authorship fixedin any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”)

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at Galerie Iris Clert in Paris, which consisted solely of an

empty art gallery.3 Composer John Cage's musical composition

4'33'', more popularly known as “Silence,” is performed by a

pianist who comes out, sits at the piano, and plays nothing for

four minutes and thirty-three seconds. These creations would be

simply denied copyright protection.

Even where there is some fixed expression, its originality

is more and more often put into question. Conceptual art provides

lots of examples, such as the telegram that Marcel Duchamp sent

in response to an invitation to participate in an exhibition of

self-portraits. The telegram said: “This is my portrait if I say

this is my portrait,”4 and the gallery owner hung it next to the

self-portraits of the other artists.5 From the copyright

perspective, the most original, funny, and rich part of this

“joke” is Duchamp’s thought behind it, not the one-sentence

telegram itself. However, under copyright law’s “four corners”

approach to expression, which limits it strictly to what is fixed3 WILLIAM F. PATRY. PATRY ON COPYRIGHT, §  4:36 (2008).4 To which the owner is said to have responded with the telegram:“This is your check if I say this is your check,” after Duchamp sent in his invoice. MAARTEN DORMAN, SHERRY MARX. ART IN PROGRESS: A PHILOSOPHICAL RESPONSE TO THE END OF AVANT-GARDE 119 (2003).5 Id.

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“in tangible medium”,6 only the telegram constitutes potentially

protected expression.

Copyright has a very low standard of originality: to be

original, expression only needs to possess a “modicum of

creativity,”7 which means that the author has to contribute

“something more than a ‘merely trivial’ variation, something

recognizably ‘his own.’”8 Does Duchamp’s telegram satisty the

test? Since it was a standard typed text, no originality can be

attributed to the author’s handwriting.9Thus, we are left to look

for originality in the phrase itself, which seems to be quite

short and general. Copyright Office’s regulations specifically

list “words and short phrases” as a category of works that are

not subject to copyright.10 6 17 U.S.C. §102(a).7 See Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346 (1991)8 Alfred Bell & Co. v. Catalda Fine Arts Inc., 191 F.2d 99, 103 (2d Cir. 1951) (internal quotations omitted).9 Had the words been rendered in Duchamp’s own handwriting, that in itself may have been sufficient for a court to find originality. According to the Supreme Court’s well-known dictum,“Personality always contains something unique. It expresses its singularity even in handwriting.” Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 249 (1903).10 “The following are examples of works not subject to copyright and applications for registration of such works cannot be entertained: (a) Words and short phrases such as names, titles,

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An argument can be made that the phrase constitutes

something recognizably by Duchamp, substantiated, for example, by

a Google search for it which yields only 3 entries, all

describing Duchamp’s prank. However, we would be arguing in

hindsight, decades after the prank was done and has become part

of the art world folklore. We know now that this phrase was

written by Duchamp, but at the time he wrote it, it was likely

much less remarkable. Given all that, combined with courts’

reluctance to violate First Amendment’s safeguards by privatizing

speech, the likely outcome of our hypothetical would be to deny

protection.

Thus, certain types of art works are apparently left

unprotected by copyright law. At the same time, from an artistic

perspective, such “happenings” are highly valued by their authors

for whom the process of creating them is probably more important

than any resulting fixed expression. Furthermore, despite the

absence of protection afforded by law, happenings are normally

not copied by others, which means that they are original enough,

and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring; mere listing ofingredients or contents….” 37 C.F.R. § 202.1.

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in art terms, for their authorship to be recognized and

respected.

Duchamp’s telegram is not a single exception. Rather, it

fits well in the broad tendency of art to keep pushing its

boundaries. Literature, for example, constantly turns to

contemporary forms of private speech and writing and incorporates

them into new or reformed genres. Thus, when Rousseau’s Confession

was published, it was meant to create a new, more “sincere,” form

of narrative than was prevalent at the time. Instead, it created

a whole new literary genre. The same happened with private

letters and journals, which were used as part of certain novels

in the 19th century , and documents, which played a significant

role in the 20th century literature.

Clement Greenberg describes art’s constantly expanding

nature as follows: “[a]mong the many things that highly original

art has always done is convert into art what seems to be non-

art.”11 Greenberg’s statement seems to accurately describe the

result, but the process may actually be bi-directional: while

attempting to transcend art’s boundaries by turning it into non-

11 CLEMENT GREENBERG, COUNTER-AVANT-GARDE, in LATE WRITINGS 5, 12 (2003).

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art, authors and artists end up, often to their own frustration,

with having transformed non-art into art. In the 20th century in

particular, in their search for new material artists turned their

attention to such non-artistic objects as documents, utilitarian

objects (as in Duchamp’s use of readymades)12 or trash (as in

Rauschenberg’s collages).13 This tendency has important

consequences for contemporary art’s copyrightability. The use of

documents, utilitarian objects, such as a coat rack or a urinal,

or trash as art works demonstrates that whatever fixed expression

remains in art will tend to be less and less original, hence less

and less protected.

Along with the growing number of unprotected works of art,

some of the 20th century art has developed in direct opposition

12 See infra Section III of this article and text accompanying notes Error: Reference source not found - Error: Reference sourcenot found.13 Brian O’Doherty, Robert Rauschenberg, Broadcast Exhibition 1958(New York Times, Apr 28, 1963), in RICHARD B. K. MCLANATHAN & GENE BROWN, THE ARTS. THE GREAT CONTEMPORARY ISSUES 41 (1978) (“The collage materials are lovingly gathered from the encounters of real life – he has a fondness for such reflects as old tires, old newsprint, old clothes. As if in tribute to the Unknown Bum, thisflotsam is battered by time and the anonymous hands that had touched it, used it, thrown it away. When everything is put together, the main adhesive force is the anti-logic of the subconscious.”).

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to copyright principles. The confluence of such concepts in

literary theory as the “death of the author”14 and the “anxiety

of influence”15 provides new theoretical substantiation for the

phenomenon of “appropriation art,” a postmodern trend in visual

arts whose adherents consciously borrow their expression from

culture, mass media, and art works of others.16 As demonstrated

by Rogers v. Koons,17 such art, if challenged in a copyright

infringement action, has very limited grounds for survival.

Briefly, to be covered under the fair use doctrine, it has to be

determined to constitute a parody, rather than satire or social

14 ROLAND BARTHES, THE DEATH OF THE AUTHOR, in IMAGE-MUSIC-TEXT 142, 146 (Stephen Heath ed. & trans., 1977) (stating that a text “has no other origin than language itself” and that “the text is a tissueof quotations drawn from the innumerable centers of culture”).15 HAROLD BLOOM, THE ANXIETY OF INFLUENCE: A THEORY OF POETRY 6 (1973) (offering “a theory of poetry by way of a description of poetic influence”).16 For a definition and detailed analysis of appropriation art, see SARAH E. HONOROWSKI, RESTRUCTURING HISTORY: APPROPRIATION ART IN A POST-POSTMODERN SOCIETY (Dartmouth College 2001).17 960 F.2d 301 (2d Cir. 1992)

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commentary.18 This narrow protection was confirmed with respect

to works of fiction in Suntrust Bank v. Houghton Mifflin Co.19

Yet another limitation of copyright protection is the so-

called idea/expression dichotomy doctrine. Under this judicially

created doctrine, codified by Congress in the 1976 Copyright

Act,20 protection granted to a copyrighted work extends only to

the expression of the work’s idea and never to the idea itself.

Together with the so-called scenes a faire,21 the doctrine forms

the basis for the exclusionary “abstraction-filtration” analysis,

18 Koons claimed that his sculpture, which he copied from a copyrighted photograph, served “through incorporating these images into works of art to comment critically both on the incorporated object and the political and economic system that created it,” id. at 309, and thus provided social commentary on the effect of mass produced commodities and media images on society. 19 268 F.3d 1257, 1267 (11th Cir. 2001). The case dealt with AliceRandall’s novel The Wind Done Gone, which was a rewriting of Margaret Mitchell’s Gone with the Wind from the viewpoint of Scarlett's half-sister Cynara, a mulatto slave on Scarlett's plantation. For a more detailed discussion of the case, see Note,Gone with the Wind Done Gone: “Re-writing” and Fair Use, 115 HARV. L. REV. 1193 (2002).20 17 USC § 102(a), (b) (1988) . 21 Alexander v. Haley, 460 F. Supp. 40, 45 (D.C.N.Y., 1978) (“[I]ncidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of agiven topic.”).

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which narrows down the scope of a work’s protectable elements in

a copyright infringement action.

In codifying the idea/expression dichotomy doctrine,

Congress made clear that it sought to restate, rather than alter,

the case law precedent that had formed the doctrine.22 In a

telling omission, Congress failed to define the key terms “idea”

and “expression.” The closest the courts came to defining them

was in Judge Learned Hand's famous “abstractions test”

articulated in Nichols v. Universal Pictures Corporation.23 The

test postulates that a literary work can be analyzed as a series

of “patterns of increasing generality” which at some point become

so abstract that they can no longer constitute protectable

expression, but rather represent the work’s unprotectable idea.24

22 H.R. Rep. No 94-1476, at 57 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5670 (“Section 102(b) in no way enlarges or contracts the scope of copyright protection under the present law.”)23 45 F.2d 119 (2 Cir. 1930), cert. denied, 282 U.S. 902 (1931).24 “Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his ‘ideas,’ to which, apart from their expression, his property is never extended.” Nichols, 45 F.2d at 121.

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Unfortunately, Learned Hand did not attempt to specify where that

threshold must lie for any particular work. Therefore, rather

than actually defining the terms “idea” and “expression,” the

test appears to be a structural model - an attempt to postulate

the structure of a work of art within the limits of copyright

law.

In an attempt to develop the test further, Professor

Zechariah Chafee likened “expression” to a “pattern” of the work

by which he meant “the sequence of events and the development of

the interplay of the characters,” as opposed to a “theme” (in

other words, a plot or a human situation), where some resemblance

of character and situations among various works will be

inevitable, and therefore not actionable.25 This was the only

significant elaboration that the abstractions test underwent

since Learned Hand’s initial pronouncement in Nichols.

Despite Chafee’s clarifications, the abstractions test

remains, in the words of its creator, “of necessity vague”26 and

suitable for ad hoc determinations only. Whether it is applicable25 Zechariah Chafee, Reflections on the Law of Copyright,45 COLUM.L. REV. 503, 514 (1945).26 Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960).

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to all kinds of works of art, or just to those that contain

narratives with a plot, has never been clarified, either.

Whatever its imperfections, however, Learned Hand’s test remains

the only structural model of an “original work of authorship

fixed in any tangible medium of expression”27 that copyright law

has devised in order to determine what exactly in such a work is

protectable.

Importantly, as Learned Hand’s model implicitly

acknowledges, determinations about the objects of copyright

protection require understanding of those objects’ structure and

functions. It is surprising, therefore, that no matter how long

courts had to struggle with the nature of the work of art, or its

originality or expression, they have not sought clarification of

such issues from art critics, literary theorists, or

semiologists. Only recently have legal commentators begun to

examine copyright principles in light of modern critical

thought,28 thus raising the courts’ awareness of this largely

27 17 U.S.C. § 102(a) (1988).28 See Robert H. Rotstein. Beyond Metaphor: Copyright Infringementand the Fiction of the Work, 68 CHI.-KENT L. REV. 725 (1993) (examining copyright law in light of principles of contemporary literary criticism).

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unknown to them area. This article will argue that art and

literary theories can provide copyright law with a firmer basis

for better delimiting the concepts of “idea” and “expression”.

More specifically, this article will show that the

idea/expression dichotomy doctrine has its equivalents in art and

literary theories and that these disciplines can supply necessary

models to make the idea/expression dichotomy workable within

copyright law.

The paper consists of three parts. Part I deals with the

theories of artistic work that might be useful in constructing a

more productive model of copyright-protected elements of a work

of art. Part II starts by analyzing the various uses of the terms

“idea” and “expression” by copyright law. The analysis reveals

that the term is currently used indiscriminately to refer to at

least three different concepts. The author then proceeds to

describe and develop each of these concepts by outlining its

specific area of application, and reconciling it with existing

art theories. Finally, Part III discusses the challenges posed by

modern conceptual art to traditional notions of copyrightability.

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It is the author’s hope that the reconstruction and further

development of the idea/expression analysis proposed in this

paper will add precision to the process of identifying

protectable elements in works of art, thus providing more

adequate protection for artistic creativity by copyright law.

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I. A Work of Art from the Standpoint of Art and Literary Theory

Sergei Eisenstein’s film “Battleship Potemkin” contains a

small scene in the beginning of its second part, before the

funeral of a killed sailor. Early dawn. We see a shot of black

shore and the sea, everything immersed in deep fog. Then the

camera slowly moves away from the shore, capturing a black

floating beacon and water. Seagulls take off above the beacon.

They circle and land on the water with a splash. Again, water and

fog. The fog gradually breaks and we see the ship’s black shape

coming out of the fog.

Here is how Eisenstein analyzed this scene with his

students.29 The purpose of the episode, he explained, is to

prepare the viewer for the theme of mourning. According to

Eisenstein, the primary form that this theme takes is expressed

through a repetitive use of black-colored elements. It begins as

the black shore shown against a dark backdrop, then it turns into

the beacon, then into the ships, and later transforms itself into

29 See Lektsiia-seminar Sergeia Eizenshteina vo VGIKe, Alma-Ata, 1942 [Sergei Eisenstein’s Seminar-lecture in VGIK, Alma-Ata, 1942], http://www.kinozapiski.ru/article/349 [hereinafter Eisenstein].

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the ship’s black bow, a black tent and women dressed in black.30

The first principle we can take from this analysis is that

Eisenstein’s visual images function as signs. Rather than

introducing the mourning theme just by telling the story, such as

by showing people gathering for the funeral, he includes in his

visuals the shore, the beacon and the ship’s silhouette, which

are all objects that on the surface have nothing to do with a

funeral.

This method of introducing and analyzing information, where

a message is created and understood through the use of signs, is

called semiosis. In semiology, which studies such phenomena, a

sign is the correlation between two elements, a signifier and a

signified, where each of the two elements points to the other.

For example, we can decide that a bouquet of roses will signify

one’s passion.31 Thus, we have created a sign which from now on

will exist as a unity, as “roses weighted with passion.”32 Roses

are going to carry that association with passion from now on,

such that every time we see roses, we will feel or be reminded of30 Id.31 This example is taken from ROLAND BARTHES, Myth Today, in MYTHOLOGIES 113 (Annette Lavers trans., Hill and Wang 1972).32 Id.

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the passion. The roses, the material “carrier” of the meaning in

our example, are in semiotic terms referred to as the signifier;

the passion, which is only denoted by the signifier, is the

signified. Similarly, the black-colored objects in Eisenstein’s

example are the signifiers and the theme of mourning is the

signified.33

In a work of art, the signifier belongs to the work’s

“expression plane,” and the signified, to its “content plane.”

Semiology always treats the expression plane as a “text,”

regardless of whether it consists of words or images. As we have

just seen, an image can be “read” semiotically almost just as

easily as words. The content plane constitutes the meaning

denoted by the text.

The crux of the semiotic approach to art lies in the

exploitation of the difference between the nature of the

33 Signs can be as simple as one word and as complex as a novel. For example, according to Roland Barthes, complete works of literature, as interpreted in Jean-Paul Sartre’s critical writings, could be seen as a single sign. See BARTHES, supra noteError: Reference source not found, at 114 (“The signified is constituted by the original crisis in the subject (the separationfrom his mother for Baudelaire, the naming of the theft for Genet); literature as discourse forms the signifier; and the relation between crisis and discourse defines the work… .”).

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signifier and that of the signified. We already saw that, in

Battleship Potemkin, the theme of mourning begins long before the

funeral through the use of the black-colored objects that in

other contexts would not be associated with such theme. In his

mental construction of the scene, the director aligns and repeats

these visual images until one particular trait of their

expression, their color, stands out enough to hint at their

common ability to signify another level of meaning, namely, the

mourning. The same metamorphosis, according to Eisenstein, is

undergone by another visual element of the scene, the fog.34 This

inherent difference between the elements of the expression plane

and the content plane creates an artistic tension and forms the

“virtual space” where the meaning of the work of art resides.35 34 “The grey fog fits into this episode, and it feels right there [because] it is the most obvious image of teared-up eyes. It has to do with tears, thus here we have a presentiment of crying women.” Eisenstein, supra note Error: Reference source not found.35 See VYACH. VS. IVANOV, OCHERKI PO ISTORII SEMIOTIKI V SSSR [Essays onthe History of the Semiotics in the USSR], available at http://philologos.narod.ru/semiotics/ivanov_semio.htm, for the proposition that “[the] semiotic nature of a work of art requiresthat it contain at least two levels, necessarily different from each other.” It is worth mentioning that the absolute requirement that the two incongruent planes must be present in every model of artistic work is not breached in those special cases where the content plane is apparently absent or takes unusual forms, such as in the plays of Ionesko, Bekkett, and

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Viewed from this analytical standpoint, every work of art

becomes a constructed object. In most cases, it can be analyzed

as a multi-level semiotic structure. One of such analytical

models, developed in the works of A. Zholkovsky and Yu.

Scheglov,36 describes the final text as gradually “explicated”

through a series of transformations from a “deeply unexpressive

initial theme.”37 In a graphic representation, this model becomes

vertical and turns into a triangle whose top represents the

other theater of the absurd authors. As demonstrated by the students of semiotics, in such cases the two planes are still present, but the expression plane adopts unconventional ways of rendering certain types of content. Besides the theater of the absurd, another well-known example of this kind of technique is the so-called “defamiliarization” (also known as “ostraneniie”) which was widely used by Tolstoy. See, e.g., Viktor Shklovsky, Art as Technique, in LITERARY THEORY: AN ANTHOLOGY 15, 16 (Julie Rivkin & Michael Ryan eds., 1998).36 See ALEXANDER ZHOLKOVSKY, THEMES AND TEXTS: TOWARD А POETICS OF EXPRESSIVENESS. (Cornell University Press 1984). 37 See Ju. K. Shcheglov & A.K. Zholkovskij, The Poetic Structure of a Maxim by La Rochefoucauld: An Essay in Theme — Text Poetics,www.usc.edu/dept/las/sll/eng/ess/bib22.htm. One of Zholkovsky and Scheglov’s articles shows how several poems of Boris Pasternak come into existence from the general theme of his poetry which is formulated by the authors as “the feeling that a person, as heexists his mundane life, and anything else that is small and ordinary, are all participants in the miracle of a single, eternal and infinite being.” See A.K. Zholkovskij & Ju. K. Shcheglov, Invarianty i structura poeticheskogo teksta. Pasternak[Invariants and structure of a poetic text. Pasternak], in Poetika Vyrazitel’nosti [The Poetics of Expressiveness], WIENER SLAWISTISCHER ALMANACH (SONDERBAND 2) 205-244 (1980).

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initial level of the structure, variously referred to as a

“signified”, a “leitmotif”, a “concept”, or a “theme,” and whose

bottom corresponds to the concept’s final transformation that

becomes the art work’s expression plane.38

The described model has certain similarities with Learned

Hand’s representation of the literary text as a series of

abstractions.39 There is, however, an important difference

between the two approaches. Learned Hand was convinced that the

test for infringement is “of necessity vague,” and that it is

impossible to state a general principle according to which one

could distinguish between a work’s idea and its expression.40 As

a result, the line that separates the “idea” from the

“expression” slides effortlessly between the top and the bottom

of the semiotic triangle, such that what is an idea in one

instance can be considered expression in another.41 38 See Ju. K. Shcheglov & A.K. Zholkovskij, The Poetic Structure of a Maxim by La Rochefoucauld: An Essay in Theme — Text Poetics,www.usc.edu/dept/las/sll/eng/ess/bib22.htm.39 See supra text accompanying notes Error: Reference source not found - Error: Reference source not found.40 Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960).41 Nothing demonstrates this result better than a court decision where one of the opposing parties draws the line between the ideaand the expression at a “lower” level of abstraction than the

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Semiology can supply more definite guideposts to prevent

this slide. Namely, it tells us that mere enumeration and other

tautological descriptions of elements of expression cannot and do

not describe a work’s content. Going back to Eisenstein’s

teaching example, a work’s “theme” or “idea” cannot be pinpointed

by simply naming the seagulls, or the fog, or the ship’s bow.42

Rather, Eisenstein taught us to “notice and follow the theme, and

define it in words,”43 where to “define” means to reformulate

other party. See, e.g., Southco, Inc. v. Kanebridge Corp., 390 F.3d 276 (3d Cir. 2004), where the issue was the originality of apart numbering system for screw fasteners. The problem was statedby the dissent as follows: “In the present case, the definition of Southco's “idea” is at the heart of my disagreement with the majority. Is Southco's “idea” the use of a code to describe products or is it the use of predetermined numbers to portray given characteristics of a particular product? The majority has determined that it should be the latter. I believe that it is closer to the former—and that the numbering rules and the particular numbers that Southco chooses to portray what it determines to be the relevant characteristics of a particular product are the expression of its idea. […] The majority, however, has adopted an unduly restrictive understanding of the originality requirement. […] By deciding that the determination of the part number is inherent in the “idea” side of the idea/expression dichotomy, the majority has pushed all of Southco's creative work onto the unprotected “side” of the idea/expression dichotomy”. Id. at 291-93 (Judge Roth, dissenting).42 See supra text accompanying note Error: Reference source not found.43 Id.

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without using the elements of the expression plane. Thus, in the

analyzed Battleship Potemkin scene, the fog and the beacon are

elements of expression; sadness, mourning and tears are the

work’s themes or ideas. Additionally, in the semiotic model

sadness stands one level “higher” as compared to mourning and

tears, and as Zholkovsky would say, the latter is “generated”

from the former. Still, both of these levels are above the

idea/expression line because tears and mourning are hidden and

given indirectly, as the theme of viewers’ anticipated feelings.

It is possible that in subsequent scenes mourning and tears will

be explicitly shown and will thus become parts of expression, but

that does not happen in the analyzed episode.

In the analysis of judicial opinions that follows we will be

relying upon the semiological model of separating ideas from

expression as well as on the general understanding of the

semiotic nature of works of art discussed above. In addition, we

will be consulting certain aesthetic theories because the “idea”

is one of the major categories of aesthetics.44 Since Plato, for

44 For a detailed analysis of the development of the concept of “idea” in aesthetics, see ERWIN PANOFSKY. IDEA: A CONCEPT IN ART THEORY (Joseph J.S. Peake, trans., Columbia 1968).

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whom ideas were purely metaphysical substances with the attribute

of absolute beauty and perfection, which resided in

supercelestial space and were capable of being contemplated by a

philosopher in an act of meditation, the concept of “idea” has

been present in every philosophical teaching that dealt with the

categories of “art” and “beauty.” Although the notion has

undergone significant transformations, it is still discernable in

courts’ language, and especially in the reasoning that the courts

apply to analyze works of art. Thus, where applicable in the

discussion of judicial opinions, we will also be referring to the

aesthetic understanding of ideas.

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II. The Idea/Expression Dichotomy

A. Preliminary observations

Despite being widely used as an analytical tool in copyright

law, the idea/expression dichotomy is remarkably imprecise.45

Courts are painfully aware of this, variously describing the

distinction between an art work’s idea and its expression as

“elusive,”46 “often an impenetrable inquiry,”47 “a difficulty,”48

and “a distinction easier to assert than to apply.”49 Scholars

are in accord.50 Nevertheless, once a court has reached a

determination delimiting the two concepts in a given work of art,

it can proceed to apply the idea/expression analysis in at least

three distinct situations.

45 As stated above, the terms “idea” and “expression” have never been defined by Congress in codifying the judicial doctrine. See supra text accompanying note Error: Reference source not found.46 Williams v. Crichton, 84 F.3d 581, 588 (2d Cir. 1996).47 Id.48 Mannion v. Coors Brewing Co., 377 F.Supp.2d 444 (S.D.N.Y. 2005).49 Warner Bros. Inc. v. American Broadcasting Companies, Inc., 720F.2d 231, 239 (2d Cir. 1983).50 See WILLIAM F. PATRY, PATRY ON COPYRIGHT, § 4:36- 4:38; John S. Wiley Jr., Copyright At the School of Patent, 58 U. CHI. L. REV. 119, 121-27 (1991); Amy B. Cohen, Copyright Law and the Myth of Objectivity: The Idea-Expression Dichotomy and the Inevitability of Artistic Value Judgments, 66 IND. L.J. 175, 212 (1990).

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First, where there is only one way of expressing an idea,

the merger doctrine applies, and the expression is not protected

even against verbatim copying.51 The reasoning courts use in such

cases equates such a work of art with one totally lacking

original authorship, which is denied copyright protection and

therefore may be reproduced verbatim.52

Second, if the plaintiff’s work is original, but the

defendant has copied only unprotectable ideas, the copyright

holder may at least protect his particular manner of expression,

even though he may not prevent others from copying ideas and

51 Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 742(9th Cir. 1971) (“When the “idea” and its expression are … inseparable, copying the ‘expression’ will not be barred, since protecting the ‘expression’ in such circumstances would confer a monopoly of the ‘idea’ upon the copyright owner free of the conditions and limitations imposed by the patent law.”)52 See 3 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 13.03[B], at 13-64 (1992) [hereinafter NIMMER].

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presenting them differently.53 In Musto v. Meyer,54 the plaintiff

published an article in a scientific journal about cocaine use in

the 19th century, in which he included a fictional sketch about

Sherlock Holmes’ addiction to cocaine and his cure through

séances with Freud. The defendant wrote a book and made a movie

titled The Seven Per Cent Solution, in which he described in detail how

Watson tricked Holmes into going to Vienna after receiving

Freud’s prior agreement to treat Holmes for his addiction, how

Freud helped Holmes through hypnosis and how Holmes, in return,

solved another mystery, engaging Freud into an

adventure/detective story involving political intrigue. The court

held that the basic plot elements that the defendant borrowed

53 See Jane Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 COLUM. L. REV. 1865, 1868 &n.12 (1990). Going back to the hypothetical involving Duchamp’s telegram, see supra text accompanying notes Error: Reference source not found- Error: Reference source not found, in the unlikely case that a court were to consider the telegram originalenough to be worthy of copyright protection, such protection would extend against verbatim copying only; all other aspects of the “happening” besides the phrase “This is my portrait if I say this is my portrait” would constitute an unprotectable idea.54 434 F. Supp. 32 (S.D.N.Y. 1977).

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from the plaintiff’s work55 were unprotectable “ideas” which the

defendant was entitled to use, albeit not word-for-word.

Third, if the plaintiff’s work is original, and the

defendant has copied not only unprotectable ideas, but protected

expression, the plaintiff’s work is protected to the extent of

such expression, including non-literal taking.56

Finally, the idea/expression analysis is arguably not

necessary in those cases of literal copying where the merger

doctrine does not apply. If the literal copying is not de minimis,

and fair use is not applicable, the copying in such cases will

always be prohibited, as long as the plaintiff’s work is original

(assuming other requirements for its copyrightability are met).

B. What is an “idea” from the point of view of copyright law

55 Which included Holmes’ going to Europe to be treated by Freud, his chasing of Moriarty as a trick concocted by Watson to lure Holmes to Vienna, and Holmes’ treatment by Freud.56 Thus, in Detective Comics, Inc. v. Bruns Publications, Inc., 111 F.2d 432 (2d Cir. 1940), the court held that the defendant, who produced a comic strip with the character Wonderman, infringed the Superman comic strip, and enjoined the defendant from “portraying any of the feats of strength or powers performedby ‘Superman’ or closely imitating his costume or appearance in any feat whatever.” Id. at 434.

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In various contexts, courts have found the following

elements of a copyrightable work to constitute its idea:

object code, source code, parameter lists, services

required, a general outline;57

the wooden form of a traditional paper doll;58

a dinosaur zoo;59

an outcome predictive pitching form;60

“a superhuman muscleman crouching in what since Neanderthal

times has been a traditional fighting pose;61

using colored patterns as a way of camouflaging

parachutes;62

using statuettes of human figures as parts of table lamps;63

57 Computer Associates Intern., Inc. v. Altai, Inc., 982 F.2d 693,714 (2d Cir. 1992) (computer programs).58 Country Kids 'N City Slicks, Inc., v. Sheen, 77 F.3d 1280, 1286(10th Cir. 1996).59 Williams v. Crichton, 84 F.3d 581, 589 (2d Cir. 1996).60 Kregos v. Associated Press, 937 F.2d 700, 706 (2d Cir. 1991).61 Mattel, Inc. v. Azrak-Hamway Int'l, Inc., 724 F.2d 357, 360 (2dCir.1983) (per curiam) (a doll).62 Fulmer v. U.S., 103 F. Supp. 1021, 1022 (Ct.Cl. 1952).63 Mazer v. Stein, 347 U.S. 201, 217-18 (1954).

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making a bejeweled gold pin in the shape of a bee64 or a

turtle;65

a floppy dog;66 and

a statue of a nude male.67

From a casual look at this non-exhaustive list, it might seem

that courts’ decisions in this area are highly inconsistent and

would be hard to reconcile. However, as applied to works of art,

courts’ particular interpretations of what constitutes the idea

of such a work can be categorized around four conceptually

distinct approaches. In the following sections we will try to

draw the boundaries of each one, and then analyze them in turn.

C. The idea/expression dichotomy as patent vs. copyright law

(“Idea I”)

64 Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738 (9thCir. 1971).65 Herbert Rosenthal Jewelry Corp. v. Honora Jewelry Co., 509 F.2d64 (2d Cir. 1974).66 Gund, Inc. v. Smile International Inc., 691 F. Supp. 642 (E.D.N.Y. 1988), aff'd mem., 872 F.2d 1021 (2d Cir. 1989).67 Sid & Marty Krofft Television Productions, Inc. v. McDonald's Corp., 562 F.2d 1157, 1168 (9th Cir. 1977) (the idea of Michelangelo's David).

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The first conceptual approach is formed by a line of “patent

vs. copyright protection” cases, where the “idea” is perceived as

something having protection under patent law but not under

copyright, as opposed to the copyrightable “expression.”68 For

example, in Muller v. Triborough Bridge Authority,69 the

plaintiff made a drawing showing a novel bridge approach designed

to unsnarl traffic congestion, and obtained a valid copyright for

it. When later the Bridge Authority used plaintiff’s approach in

designing and constructing a bridge, he sued for copyright

infringement. The court found that there was no infringement by

the Authority, as the copyright to the drawing did not confer to

68 See Baker v. Selden, 101 U.S. 99 (1879) (holding that the copyright in a book describing an accounting system does not vestin the copyright owner a monopoly over the system in question); Muller v. Triborough Bridge Authority, 43 F. Supp. 298 (D.C.N.Y. 1942) (see infra text accompanying note Error: Reference source not found); Fulmer v. U.S., 103 F. Supp. 1021 (Ct.Cl. 1952) (holding that by obtaining the copyright in a design of a parachute, which provided a method of camouflaging it, the plaintiff only obtained the right to exclude others from reproducing the design, as an artistic expression, and not from creating colored parachutes as such; according to the court, however, the idea of camouflaging parachutes was original and as such, patentable); Mazer v. Stein, 347 U.S. 201 (1954) (holding that the plaintiff may not exclude others from using statuettes of human figures in table lamps; but may prevent use of copies ofits statuettes).69 43 F. Supp. 298 (D.C.N.Y. 1942).

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its owner the exclusive property in its idea, i.e. the way of

separating the traffic described in the drawing.70

The “idea” in this category of cases is akin to a scientific

concept or a technological innovation. It is either verifiable

like a scientific concept, or utilitarian in which case its

parameters can be calculated in order to perform its intended

function. As such, the “Idea I” approach has very little to do

with works of art whose “ideas” can hardly be characterized as

utilitarian or verifiable. Furthermore, the methods of analysis

that would be applicable to Idea I are far removed from those

used to analyze works of art. Thus, in our opinion, the method of

interpretation we designated as Idea I is inapplicable to the

analysis of works of art and therefore not relevant to our

discussion.71

70 Id. at 299-300.71 It should be noted, however, that courts sometimes tend to ignore the distinction made above. See, e.g., Judge Kaplan’s use of a theory of relativity example to describe the difference between the idea and expression of a literary work. Mannion v. Coors Brewing Co., 377 F. Supp. 2d 444, 456 (S.D.N.Y. 2005) (“[T]wo different authors each can describe, with very different words, the theory of special relativity. The words will be protected as expression. The theory is a set of unprotected ideas.”)

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D. “Idea” as the subject matter (“Idea II”)

The second group of cases uses the term “idea” as a synonym

for the fragment of objective reality depicted in a work of art.

The same concept is sometimes also referred to as the work’s

“theme” or “subject matter.” This approach is often encountered

in cases dealing with claims of infringement of paintings and

photographs. In such a case, the defendant often tries to label

the object depicted in the plaintiff’s photograph as the work’s

“idea,” thus intending to avoid liability by having the court

apply the idea/expression dichotomy analysis.

For example, in Kaplan v. Stock Market Photo Agency, Inc.,72

the defendant claimed that the “idea,” i.e. the subject matter of

both its and the plaintiff’s photographs, was a businessperson

contemplating a leap from a tall building onto the city street

below. The court agreed, holding that, the subject matter as so

described constituted the photograph's central idea, and

consequently was unprotectable.73 Similarly, courts have held

that:72 133 F. Supp. 2d 317 (S.D.N.Y. 2001). 73 Id. at 323. The Kaplan case is discussed in more detail in the next section of this article (see infra text accompanying noteError: Reference source not found).

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a billboard advertising a brand of beer to young black

Americans by displaying a torso picture of a muscular black

man, only shared with the plaintiff’s photograph “the

generalized idea of a young African American man wearing a

white T-shirt and a large amount of jewelry”;74

the plaintiff’s photograph “The Puppies” and Jeff Koons’

sculpture “A String of Puppies” shared “the idea of a couple

with eight small puppies seated on a bench”;75 and

cardinal birds depicted on a canvas were “thematic

concepts,” representing the work’s idea.76

In Natkin v. Winfrey,77 the court cited Copyright Office

regulations to support its view that a photograph’s idea was to

be found in “the nature of the thing depicted” and “the subject

of the photograph.”78 74 Mannion v. Coors Brewing Co., 377 F.Supp.2d 444, 455 (S.D.N.Y. 2005).75 Rogers v. Koons, 960 F.2d 301, 308 (2d Cir.), cert. denied, 506U.S. 934 (1992).76 Franklin Mint Corp. v. National Wildlife Art Exchange, Inc., 575 F.2d 62, 66 (3rd Cir. 1978).77 111 F.Supp. 2d 1003 (N.D. Ill., 2000). 78 Id. at 1010 (“The Copyright Office, whose opinion as to the scope of the Copyright Act is afforded great deference, instructsthat ‘the nature of the thing depicted or the subject of the photograph or hologram ... is not regarded as a copyrightable element.’ Copyright Office, Compendium II of Copyright Office

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This approach reflects an understanding of art as mimesis,79

the view embedded in American legal thought and discourse through

Justice Holmes’ famous dictum in Bleistein v. Donaldson

Lithographing Co.80: “Others are free to copy the original. They

are not free to copy the copy.”81 The choice of the word “copy”

in the first of the two sentences just quoted underscores the

commonly held belief that the objective of an artist is to

imitate nature as closely as possible. Accordingly, the work of

an artist who imitates other artists is believed to be inferior

to the work of those who imitate nature.

Practices § 508.01 (1998 Supp.). This is because ideas and facts are not copyrightable; rather copyright law protects only the tangible expression of ideas and facts.”)79 Mimesis is an aesthetic concept, which explains the process of artistic creation as imitation of nature. The term is derived from Greek where it meant “to imitate.” See http://csmt.uchicago.edu/glossary2004/mimesis.htm#_ftn1 For historic development and analysis of a concept, see Erich Auerbach, Mimesis: Representation of Reality in Western Literature Trans. By Willard R. Trask, Princeton University Press, 2003. 80 188 U.S. 239 (1903).81 Id. at 249. Jane Ginsburg characterizes Holmes’ statement as a “Romantic commonplace.” Ginsburg, supra note Error: Reference source not found, at 1882 n.57. It is, in fact, a reflection of the more general mimetic model of art known since antiquity(see infra text accompanying notes Error: Reference source not found and Error: Reference source not found).

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The mimetic view of art has been known since antiquity and

can be traced to the aesthetics of the stoics, specifically to

the writings of Seneca. For Seneca, the concept of an artistic

idea was basically indistinguishable from the concept of an

object of artistic representation.82 Thus, an artist who would

want to paint a portrait of Virgil, would have to be looking at

Virgil whose physical image would then become the idea of the

portrait.83

The mimetic approach to art has its limitations. It applies

to representational art only and would not be useful for

determinations involving imaginary objects such as a “dinosaur

zoo,”84 because these do not exist in nature. An even more

difficult determination is involved in cases where together with

the subject matter, the defendant is claimed to have borrowed

some of the work’s artistic meaning (in other words, that

unnamable “something” that is added to the subject when it is

82 PANOFSKY, supra note Error: Reference source not found, at 23. 83 Id. at 25 (“His idea [was] the countenance of Virgil, the modelof the work of art. That which the artist takes from the model and puts into his work is the idos [meaning “form” – N.F.]) (citing Seneca’s Epistolae). 84 The subject matter discussed in Williams v. Crichton, 84 F.3d 581 (2d Cir. 1996).

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turned into a work of art). It is not surprising that parties

often fight over such determinations.

In Leigh v. Warner Bros., Inc.,85 for example, the defendant

made pictures of a replica of the “Bird Girl” statue. The

plaintiff, who had earlier photographed the statue, argued that

the “eerie” feeling that his photograph evoked (and that

allegedly was also present in the defendant’s works) was

copyrightable, precisely because he had created such feeling as

part of the image, i.e. the work’s expression. The court,

however, decided that the eerie mood was a type of expression

that is “commonly associated with the subject matter

(cemeteries),”86 thus constituting an unprotectable scene a

faire. What the Leigh court seems to be saying, in effect, is

that the haunted, eerie feeling evoked by the plaintiff’s

photograph necessarily becomes part of an artist’s image by

virtue of it already being present in the subject matter, the

cemetery. Therefore, this feeling, as it is represented in the

photograph, is not something that the defendant had borrowed from

85 212 F.3d 1210 (11th Cir. 2000).86 Id. at 1215.

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the plaintiff, but rather is something that they had both

borrowed from nature.

Thus, when courts follow the mimetic approach, they

inevitably come to two conclusions, both of which can be traced

to Bleistein. First, the work’s subject matter is its idea, and

the artist just “copies” it from nature. Therefore, any “second

comer” is free to copy the same natural object and if he happens

to drag along an artistic expression which bears striking

similarity to that of the plaintiff’s work, there is no recourse

because it is all part of the same “theme.” Second, the mimetic

approach requires only a very low threshold of originality as the

only thing artists can be expected to do is copy nature, which

need not involve great imagination or creativity.87

The issue, however, is not so simple from the contemporary

art theory’s point of view. Semiology makes a very clear

distinction between the object photographed or painted, and the

image of such object created in an artwork. The physical object87 Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903). (“The copy is the personal reaction of an individual upon nature.Personality always contains something unique. It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible, which is one man's alone. That something he may copyright”.)

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belongs to “life,” the objective reality, while the artistic

image is the result of transformations that the artist performs

in order to turn the object into its depiction.88 Artists copy

nature selectively. As demonstrated by Barthes, even in

photography, where the selective transformation of natural

objects is limited by photographer’s inability to intrude upon

the object’s physical characteristics,89 specific artistic

meanings are still generated through cultural codes.90

Thus, in a poster advertising the Panzani brand of pasta

sauce, Barthes recognizes four different signs.91 It is

noteworthy that in discussing those signs, Barthes consistently

refers to the signified of a sign as an “idea.” Indeed, from a

88 For a detailed description of such transformations, see ROLAND BARTHES, RHETORIC OF THE IMAGE, in IMAGE-MUSIC-TEXT 32, 43 (Stephen Heath ed. & trans., 1977).89 We are leaving beyond the scope of this discussion the transformational possibilities provided by software programs suchas Photoshop.90 BARTHES, supra note Error: Reference source not found.91 “First, the idea that what we have in the scene represented a return from the market. Its signifier is the half-open bag which lets the provision spill over the table, ‘unpacked’….[In the third,] the serried collection of different objects transmit the idea of totally culinary service, on the one hand as though Panzini furnished everything necessary for a carefully balanced dish and on the other as though the concentrate in the tin were equivalent to the natural produce surrounding it…” Id. at 34-35.

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semiotic standpoint, the work’s “idea” must exist within the

work. In other words, even though an art object’s “idea” may not

be part of its “expression,” it will still be found within the

work’s overall semiotic structure, allowing the art object to

function within a broader world where each sign has a meaning

inseparable from its signifier.

Thus, for a semiotician, the eerie spiritual feeling evoked

by the plaintiff’s photograph in Leigh should be protected

precisely because it was the artist who was able to conjure it in

his image. Placing the “idea” inside the structure of an

artistic work, however, puts semiology in direct confrontation

with the courts’ approach that we designated as “Idea II,” in

which an “idea” is equated with the subject matter. As we will

show next, in contrast to the Idea II approach, other lines of

judicial thought have created models that have much more in

common with art and literary theory.

E. “Idea” as the author’s “mental conception” of a visual

art work (“Idea III”)

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In several opinions analyzing works of visual art, courts

have come much closer to the art theory’s understanding of the

idea. Two cases in particular, Burrow-Giles Lithographic Co. v.

Sarony,92 and Mannion v. Coors Brewing Co.,93 will shape our

discussion in this section. Separated from each other by more

than a hundred years, each of the cases presents legal

difficulties for courts and commentators trying to fit the

opinions’ reasoning in a particular legal tradition or line of

precedents.

In Sarony, a lithographer copied the Oscar Wilde No. 18, a

photograph made by Napoleon Sarony. Sarony sued for copyright

infringement. In his defense, the lithographer argued that

photographs did not deserve copyright protection because they

lacked originality. Furthermore, even if photographs in general

were protectable, it was not clear who was to be considered the

author of the photograph in question: the person who set it up

and snapped the shutter, Oscar Wilde, who doubtlessly offered

92 Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884).93 Mannion v. Coors Brewing Co., 377 F. Supp. 2d 444 (S.D.N.Y. 2005).

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some creative advice, or the person who made the lithograph from

it.94

The Supreme Court found that the expression in the

photograph was original and therefore, protectable,95 and that

the photographer was the author.96 It is significant that

originality and authorship are interrelated in the Court’s

reasoning: the originality of expression flows from the fact that

Sarony was the author of the photograph; consequently, he made it

from “his own original mental conception.”97 Therefore, for the94 Sarony, 111 U.S. at 60-61.95 In particular, the originality of expression consisted in “posing the said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression.” Sarony, 111 U.S. at 55.96 Id. at 60 (“These findings … show this photograph to be an original work of art, the product of plaintiff's intellectual invention, of which plaintiff is the author.”)97 “It is a useful, new, harmonious, characteristic, and graceful picture, and that plaintiff made the same * * * entirely from hisown original mental conception, to which he gave visible form by posing the said Oscar Wilde in front of the camera, selecting andarranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression, and from such disposition, arrangement, or representation, made entirely by plaintiff, he produced the picture in suit.” Sarony, 111 U.S. at 60.

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Court in Sarony, the concept of originality is dual and

encompasses both the “original mental conception” of the work and

the work’s visible form, which has to be “useful, new,

harmonious, characteristic, and graceful.”98 Under this approach,

ideas must evidently be tested by their realization, and only

those which result in “harmonious, characteristic, and graceful”

works are worthy of protection.

This duality feels so foreign to modern copyright law that

one commentator explains it as the result of an unresolved

dichotomy between two approaches to the concept of text embodied

in one decision.99 Namely, the focus on authorship demonstrates

“a decidedly Romantic approach to the text,”100 which waned

rapidly after Sarony had been decided. It is characterized by

looking outside of the work to the personality of the author to

find originality. On the other hand, the finding of originality

in the pose, clothing, background, light, shade, and like

98 Id.99 See Rotstein, supra note Error: Reference source not found, at 743-45. 100 Id. at 744. For a discussion of the Romantic concept of authorship and its embodiment in copyright law, from Bleistein toBrandeis’ “property-personality” concept, see Ginsburg, supra note Error: Reference source not found, at 1881-88.

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elements of the final product has been said to result in the

ultimate “repudiation of author in favor of the self-contained

work,”101 the approach that has dominated copyright law ever

since.102

The described model feels foreign and unfamiliar not because

Sarony’s language has itself disappeared. In fact, courts,

especially in the Second Circuit, have retained the “original

mental conception” language of Sarony in cases dealing with

photographs.103 Also, courts do not reject the very notion that

authors may have ideas.104 On the contrary, according to the101 See Rotstein, supra note Error: Reference source not found, at744. 102 See, e.g., Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 116 (2d Cir.1998), Rogers v. Koons, 960 F.2d 301, 307 (2d Cir.1992); Gross v. Seligman, 212 F. 930, 931 (2d Cir.1914); SHL Imaging, Inc. v. Artisan House, Inc., 117 F. Supp. 2d 301, 311 (S.D.N.Y.2000); E. Am. Trio Prods., Inc. v. Tang Elec. Corp., 97 F. Supp. 2d 395, 417 (S.D.N.Y.2000); Kisch v. Ammirati & Puris Inc., 657 F. Supp. 380, 382 (S.D.N.Y.1987) (all citing the Saronylanguage quoted above).103 See Pagano v. Chas. Beseler Co., 234 F. 963, 964 (S.D.N.Y. 1916), Gross v. Seligman, 212 F. 930, 931 (2d Cir.1914); Andersson v. Sony Corp. of Am., No.96 Civ. 7975(RO), 1997 WL 226310, at *2 (S.D.N.Y. May 2, 1997); Kisch v. Ammirati & Puris Inc., 657 F. Supp. 380, 382 (S.D.N.Y.1987).104 That the “original mental conception” is in the eyes of the Court a sub-species of the idea is clear from the following passage of the Sarony opinion: “By writings in that clause is meant the literary productions of those authors, and congress very properly has declared these to include all forms of writing,

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Supreme Court’s definition of the word “author,” authors must

have them.105 What is so different between Sarony’s approach and

modern copyright law is that the latter seems to take the

position that, since ideas fall outside its protection, it can

adequately describe expression without taking ideas into

consideration.

At the same time, the Sarony model is close to art theory,

which sees the relationship between the idea and the final

expression as a continuum of transformations, from the “deeply

printing, engravings, etchings, etc., by which the ideas in the mind of the author are given visible expression.” 111 U.S. at 58.105 Community for Creative Non-Violence v. Reid, 490 U.S. 730, 737(1989) (“As a general rule, the author is the party who actually creates the work, that is, the person who translates an idea intoa fixed, tangible expression entitled to copyright protection.”).See also Erickson v. Trinity Theatre, Inc., 13 F.3d 1061, 1071 (7th Cir. 1994) (noting that the person who fixes ideas in tangible expression qualifies as the author); Childress v. Taylor, 945 F.2d 500, 507 (2d Cir. 1991) (stating that expressionmust be fixed before its creator is considered the author); Ashton-Tate Corp. v. Ross, 916 F.2d 516, 521 (9th Cir. 1990) (noting the general rule that a person must translate ideas into copyrightable expression to be considered the author); Riley HomeBldg. Corp. v. Cosgrove, 864 F. Supp. 1034, 1037 (D. Kan. 1994) (stating that copyright ownership vests only in the person who creates fixed, tangible expression); Balkin v. Wilson, 863 F. Supp. 523, 527-28 (W.D. Mich. 1994) (discussing the requirement that one must fix the idea into a tangible form to be the author).

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unexpressive” idea106 down to its final embodiment in the work of

art. We saw this approach earlier in the Zholkovsky/Scheglov

model of generative poetics.107 Similarly, one of the images that

Eisenstein evokes in his discussion of the genesis of artistic

expression describes the process as “physical” embodiment of

ideas.108

In jurisprudence, a recent case working with a similar model

of creativity is Mannion,109 but it has a predecessor that needs

to be mentioned first, Kaplan v. Stock Market Photo Agency,

Inc . 110 In Kaplan, a photographer sued another photographer for

106 See supra text accompanying note Error: Reference source not found.107 Id.108 According to Eisenstein, the creative process involves an almost physical “grafting” of flesh onto a bare mental scheme (“Aformulaic concept, growing richer, expanding through expressive elements, acquires form and turns into an image.”) (cited in MIKHAIL YAMPOL’SKY, PAMYAT’ TIRESIYA [Tiresias’ Memory], available at http://www.dnevkino.ru/library_yampolsky-tiresiy_7a.html). Another variation of the same process is “concretization” (in Zholkovsky’s terms), which Eisenstein emphasized in his analysis of the Battleship Potemkin scene: from the general (black background and grey fog) to the details of black bows and tears in the eyes.See supra text accompanying note Error: Reference source not found.109 Mannion, 377 F. Supp. 2d at 454. 110 Kaplan v. Stock Market Photo Agency, Inc., 133 F. Supp. 2d 317(S.D.N.Y. 2001). Like Mannion, Kaplan is a district court opinionfrom the Second Circuit.

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infringement over what the Mannion court called a “remarkably

similar photograph”111 to the one originally produced by the

plaintiff. Both photographs portrayed a business person standing

on top of a skyscraper and looking down the street, apparently

contemplating a suicide. Despite the two photographs’ striking

similarity, and defendant’s conceded access to plaintiff’s work,

the court found that the similarities between the photographs

“involved elements not protected by copyright,” namely

unprotectable ideas and scenes a faire.112

Reflecting on Kaplan court’s conclusions, the Mannion court

suggested that there could be at least three formulations of the

“idea” of Kaplan's photographs: (1) a businessman contemplating

suicide by jumping from a building, (2) a businessman

contemplating suicide by jumping from a building, seen from the

vantage point of the businessman, with his shoes set against the

street far below, or (3) a sense of desperation produced by urban

111 Mannion, 377 F. Supp. 2d, at 456. 112 Kaplan, 133 F. Supp. 2d at 323 (“The subject matter of [plaintiff’s and defendant’s] photographs is a businessperson contemplating a leap from a tall building onto the city street below. As the photograph's central idea, rather than Kaplan's expression of the idea, this subject matter is unprotectable in and of itself.”).

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professional life.113 The first statement is what the Kaplan court

said the idea was.114 The second is what the Kaplan court must

have really meant, according to Judge Kaplan writing in Mannion,

because only this formulation covers all the similarities between

the two photographs and justifies the court’s decision in

Kaplan. 115 Finally, the third statement is what Judge Kaplan

suggests could be the correct answer based on his intuitive

feeling that an “idea” should be “something more general.”116

Judge Kaplan concludes that, under the current law, it is

impossible to discern any real distinction between the idea and

expression in a work of visual art, that the dichotomy analysis

should therefore be dropped, and that the substantial similarity

analysis adequately takes care of the problems encountered in

infringement cases.117 113 Mannion, 377 F. Supp. 2d, at 456.114 Kaplan, 133 F. Supp. 2d at 323.115 Mannion,, 377 F. Supp. 2d, at 456 n. 73.116 Id. at 456.117 “[I]t is impossible in most cases to speak of the particular “idea” captured, embodied, or conveyed by a work of art because every observer will have a different interpretation. Furthermore,it is not clear that there is any real distinction between the idea in a work of art and its expression.” Id. at 458. “For all of these reasons, I think little is gained by attempting to distinguish an unprotectible “idea” from its protectible “expression” in a photograph or other work of visual art.” Id. at

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However, looking at the problem from a semiological

standpoint and keeping in mind the Sarony framework, we can come

to completely different conclusions from Judge Kaplan’s

thoughtful observations in Mannion. What looks to Judge Kaplan as

three equally possible (and therefore confusing) choices, can be

viewed as projections of the different stages of the

Zholkovsky/Scheglov model. Thus, statement No. 3 above, “a

desperation produced by urban professional life” can be described

as the most generally stated theme of the plaintiff’s photograph

or, in Sarony terms, the author’s “original mental conception.”

That theme then gets some layers of “flesh” grafted onto it

through several levels of explications (in Zholkovsky-Eisenstein

terms) and, at some point along this continuum, the theme becomes

sufficiently fleshed out to be considered, from that point on,

“expression” rather than an “idea.”

When is that point reached? There can hardly be a single

answer to that question. However, rather than limiting ourselves

to the inevitable vagueness of the “abstractions” analysis, we

would like to propose an answer in line with Eisenstein’s

459. “. “In the context of photography, the idea/expression distinction is not useful or relevant.” Id. at 461.

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principles. As discussed above,118 Eisenstein encouraged his

students to learn to discuss the meaning of a film episode not in

terms of the directly observable visual images, such as the

movements of seagulls and beacons, but in terms of the hidden

meanings connoted by such images, such as sadness and mourning.

In other words, a proper rendering of a work’s content plane (its

“idea,” in copyright terms), cannot be done just by describing

the elements of the work’s expression plane. Rather, one must use

terms from a level “more general” than the level of expression.

In Mannion’s interpretation of the Kaplan case, only

statement No. 3 satisfies this requirement. The other two

statements use only the terms from the level of expression and,

therefore, cannot adequately render the work’s idea, while

statement No. 3 seems to be the most appropriate candidate for a

true description of it. Had the Kaplan court selected it,

however, it would have had to come to the conclusion that all

those elements of the defendant’s photograph that were

substantially similar to the plaintiff’s photograph were borrowed

from plaintiff’s expression and should have been protected. 118 See supra text accompanying notes Error: Reference source not found - Error: Reference source not found.

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Compared to the actual outcome of Kaplan, such a result

should be welcomed, as it would provide greater incentive for

artists to be creative and think of truly original ways to

implement their “mental conceptions.”119

F. Idea in Narratives. Learned Hand’s test as a means of

equitable weighing

The mimetic approach to art discussed earlier in this

article120 has also produced a notion of ideas as “general forms”

which are always present in an artist’s rendition of nature.121

Examples of general forms in visual arts include the proportions

of the human figure and other objects, the rules of perspective,

and similar concepts. The understanding of ideas as general

forms, as shown by Erwin Panofski, was theoretically developed by

119 It is noteworthy that Learned Hand believed that almost every photograph had something original in it. See Jewelers' Circular Publishing Co. v. Keystone Publishing Co., 274 F. 932, 934 (S.D.N.Y. 1921), aff’d, 281 F 83 (2d Cir. 1922) (“[N]o photograph, however simple, can be unaffected by the personal influence of the author, and no two will be absolutely alike.”)120 See supra text accompanying notes Error: Reference source not found - Error: Reference source not found.121 See PANOFSKI, supra note Error: Reference source not found, at 13-25.

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a number of artists and art theorists of the Renaissance and

ultimately led to the concept of “design.”122

In particular, for Giorgio Vasari, the first Italian art

historian, the source of a “general form” lied in the universal

proportionality that we can observe in nature where each part

contains the whole, and vice versa, and from which, in an act of

“general judgment” extending to “all things in nature,” the

artist creates the design of his work, as a visible expression of

the artist’s mental conception.123 When he wrote his Lives of the

122 The Italian word “disegno” is rendered in the English translation of Panofsky’s book as “design”, but in a Russian-language version of it that we have also consulted it is translated as “drawing.” We will be using the term “design” in our discussion, but the mental image of a “drawing” is helpful tounderstand that the “design” here means not a set of abstract proportions represented in formulas, but takes a visible form.123 GIORGIO VASARI, VASARI ON TECHNIQUE 205 (Louisa S. Maclehose trans., J.M. Dent & Co. 1907) (“Seeing that Design, the parent ofour three arts … draws out from many single things a general judgment, it is like a form or idea of all the objects in nature,most marvelous in what it compasses, for not only in the bodies of men and of animals but also in plants, in buildings, in sculpture and in painting, design is cognizant of the proportion of the whole to the parts and of the parts to each other and to the whole. Seeing too that from this knowledge there arises a certain conception and judgment, so that there is formed in the mind that something which afterwards, when expressed by the hands, is called design, we may conclude that design is not otherthan a visible expression and declaration of our inner conceptionand of that which others have imagined and given form to in theiridea.”).

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Artists, Vasari like other Renaissance authors was referring

exclusively to visual arts, but can his views have a broader

heuristic significance and be extended to literary texts? And,

if so, how does the universal proportionality that he described

manifest itself in literature?124

In our opinion, in a narrative, the plot is a concept that

is equivalent to Vasari’s “ideas” or “general forms.” Just like

the perspective and the observable proportions of bodies and

structures are rooted in the laws governing visual perception of

space, the temporal sequence of birth, love, marriage, and death

events that constitutes a typical plot is a reflection of the

general forms of human perception of time, and at the same time

an anthropological embodiment of life’s inner logic. The events124 For two reasons, we will exclude lyrical poetry from the discussion that follows. First, we are unaware of any cases discussing copyright infringement of a lyrical poem, thus, there would be little practical significance in our observations. Second, lyrical poetry is quite different from narratives. It is quite tempting to search for proportionality in the formal structure of a poem, and, indeed, the laws of the golden ratio are applicable to most literary “short” forms. It is also possible to find correlations such as the one between the four metrical feet in a line of tetrametric verse and the four-line structure of a typical poetic stanza, which creates one of the most stable combinations in poetry. However, this line of discussion would not lead us to anything applicable to narratives.

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that form a typical plot can happen, and if fact, may have

happened to the typical reader and theoretically, to every human

being. Thus, in Vasari’s terms, plots, like designs, are derived

from “general judgments” because, although describing particular

events often taken from nature, they surpass their particularity

by becoming universally significant.

The structure of a plot is defined by the genre of the

particular narrative that such a plot is called on to implement.

For example, in his analysis of the folktale genre, Vladimir

Propp described a single “meta-plot” which he divided into 31

functions, the primary of them being villainy (the villain

damages the hero’s family), mediation (the hero discovers the

lack), counteraction (the hero chooses positive action),

departure (the hero leaves on a mission), acquisition of a

magical item, the struggle between the hero and the villain,

victory (the villain is defeated), the hero’s departure for home,

pursuit and rescue, a wedding, etc.125 Each of a folktale’s

characters is associated with and defined through its particular

125 For a full description of the functions, see VLADIMIR PROPP, MORPHOLOGY OF THE FOLKTALE (Laurence Scott trans., 2nd ed., University of Texas Press 1968) (1927).

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function such as, for example, “the protagonist,” “the villain,”

“the magic helper,” etc.

Propp’s model possesses a great descriptive force. However,

it is not always the case that an actual narrative can be

described through its plot structure alone. Usually, it is formed

by the interaction of its plot and the characters of whom there

is typically at least two and who possess more independence than

just being able to carry out a structural function.

Thus, in his structural studies of Ian Fleming’s novels,

Umberto Eco concluded that each novel is built upon a “perfectly

prearranged scheme,”126 consisting of 9 invariable functions (or

“moves,” in Eco’s terminology), which are formed by interactions

of the four major characters: M, Bond, Villain, and Women. In

addition, numerous “side issues” take place in each novel. 127

These side issues “are rich enough to form the muscles of the

separate skeleton of narrative,”128 without changing the basic

structure of a Bond novel. As examples of such side issues in

Diamonds are Forever, Eco lists the prologue which introduces the126 Umberto Eco, Narrative Structure in Ian Fleming, in THE NARRATIVE READER 115, 116 (Martin McQuillan ed., 2000).127 Id. at 117. 128 Id. at 119.

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reader to diamond smuggling in South Africa, episodes at the

races in Saratoga, casino scenes, shooting matches between car

occupants, various exotic chases, including a “flight by railway

trolley through the desert followed by locomotive-thing,” and a

mortal gamble between several killers and Bond.129

A distinction that copyright law could use from studying the

described narrative models is the one to be drawn between the

core structure of a plot, such as that described by Propp’s

functions or Eco’s “moves,” on the one hand, and the textual

“embellishments,” or “side issues,” of the kind that Eco

identifies in Fleming’s novels, on the other. From copyright

law’s standpoint, the elements of the core structure should not

be copyrightable, as they represent the “ideas” of the narrative

work, whereas those belonging to the “embellishment” level,

should be, as they are part of the work’s “expression.”130 129 Id. at 117-19.130 As we have mentioned, the specific plot structure differs withthe genre (and thus, Ian Fleming’s novel as a separate genre has a different structure that a folktale), but in all cases, it is astructure that is deep and archetypal. In his additional research, Propp established that his plot model reproduces an ancient initiation rite and explained it through the hypothesis that the origin of the folktale lies in primitive rituals. This closeness to archetypes explains the recurrent appearance of suchmodels in literature, and provides further support for their non-

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This conclusion is in accord with courts decisions. For

example, in Reyher v. Children's Television Workshop,131 each of

the plaintiff and the defendant published a children’s story. The

plaintiff’s story was based on a parable she was told as a child

by her Russian mother. The defendant’s story originated from

something his mother told his younger sister 20 years earlier,

and the defendant’s sketch artist remembered the same story from

a book he had read in Europe in his childhood. The Second Circuit

disagreed with the district court’s characterization of

plaintiff’s book as a derivative work, and concluded that all

Reyher borrowed from her mother was an idea. Accordingly, all

similarities between plaintiff’s and defendant’s works originated

from the same “thematic concept,” namely that “to a lost child,

the familiar face of the mother is the most beautiful face, even

though the mother is not, in fact, beautiful to most.”132 Thus, a

folkloric parable, existing in family memories and passed orally

from parents to children, was not copyrightable, as long as it

was limited to its genre. This makes sense from a literary

copyrightability. 131 533 F.2d 87 (2d Cir.), cert. denied, 429 U.S. 980 (1976).132 Id. at 92.

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theory’s standpoint because folklore genres, whose plots consist

almost entirely of “deep” structures, should not be

protectable.133

In cases where the parties litigate over narratives of

comparable genres that combine common deep structures with

textual embellishments, courts’ decisions are less consistent.

In Twentieth Century-Fox Film Corp. v. MCA, Inc.,134 the plaintiff

produced the movie Star Wars, and the defendant, the movie Battlestar:

Galactica. In the appellate brief, Star Wars producers argued that

the two works had at least 34 similarities,135 although the

court’s opinion lists only 13.136 Although Star Wars as such cannot133 Inherent connection of a plot structure with the genre of the corresponding narrative is implicitly recognized in courts’ consistent refusal to find infringement by works representing different genres, although definitely inspired by the same “thematic concept.” Thus, obvious incongruity of genres supports the decisions in Musto v. Meyer, 434 F. Supp. 32 (S.D.N.Y. 1977) (no similarity between a article and a book of fiction) and Williams v. Crichton, 84 F.3d 581 (2d Cir. 1996) (holding that the “adult novel” Jurassic Park and a movie based on the novel were not infringing of four children’s books describing adventures in a dinosaur’s zoo).134 715 F.2d 1327 (9th Cir. 1983). 135 I d . at 1329 n.5. 136 Id. (“(1) The central conflict of each story is a war betweenthe galaxy's democratic and totalitarian forces.

(2) In Star Wars the young hero's father had been a leader ofthe democratic forces, and the present leader of the democraticforces is a father figure to the young hero. In Battlestar, the

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be equated with a folktale, the movie’s deep structure is so

closely related to that of a folktale that it in fact has been

analyzed under the Propp model.137

9 out of the 13 similarities cited by the court are similar

to Propp’s functions and therefore, should not be non-

young hero's father is a leader of the democratic forces.(3) The leader of the democratic forces is an older man,

displaying great wisdom, and symbolizing goodness and leadership,with a mysterious mystical ability to dominate a leader of thetotalitarian forces.

(4) An entire planet, central to the existence of thedemocratic forces, is destroyed.

(5) The heroine is imprisoned by the totalitarian forces.(6) A leading character returns to the family home to find

it destroyed.(7) The search by the totalitarians and the liberation

attempt by the democratic forces are depicted in alternatingsequences between the totalitarian and democratic camps.

(8) There is a romance between the hero's friend (thecynical fighter pilot) and the daughter of one of the leaders ofthe democratic forces.

(9) A friendly robot, who aids the democratic forces isseverely injured (Star Wars) or destroyed (Battlestar) by thetotalitarian forces.

(10) There is a scene in a cantina (Star Wars) or casino(Battlestar), in which musical entertainment is offered by bizarre,non-human creatures.

(11) Space vehicles, although futuristic, are made to lookused and old, contrary to the stereo-typical sleek, newappearance of space age equipment.

(12) The climax consists of an attack by the democraticfighter pilots on the totalitarian headquarters.

(13) Each work ends with an awards ceremony in honor of thedemocratic heroes.”)

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copyrightable. However, similarities 8 through 11 could probably

qualify as embellishments in Eco’s terms, and in our opinion are

worthy of copyright protection. In fact, the court denied

defendant’s motion for summary judgment,138 thus acknowledging

that the similarities between the two works could derive from

more than the unprotected plots.

Even though we are not privy to court’s reasoning in

Twentieth Century-Fox Film Corp., its denial of defendant’s

summary judgment motion is nevertheless in accord with the

delimitation between the idea and expression that narrative

theories provide. In contrast, we are at a loss to explain the

outcome of Midas Productions, Inc. v. Bayer139 from the same

premises.

In Midas, the plaintiffs were the owners of a photoplay

script and an undistributed movie, whereas the defendants owned

the distributed hit Macon County Line. Both films involved young

137 For a complete application of Propp’s analysis to the structure of Star Wars, see Propp's Morphology of the Folk Tale, http://changingminds.org/disciplines/storytelling/plots/propp/propp.htm.138 Twentieth Century-Fox Film Corp. v. MCA, Inc., 715 F.2d at 1329.139 437 F. Supp. 1388 (C.D.Cal. 1977).

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characters from the 1960s “on the move.”140 At the trial, both

parties listed a number of similar scenes in the two movies. The

list included the following items:

traveling through the South on motorcycles, orautomobiles unusual in construction;

while stopped at a service station, they are warned bya lawman to “keep moving”;

their vehicle becomes stranded after a breakdown andthey camp out;

a romantic involvement between a female hitchhiker whojoined them and one of the group culminating in nudefrolicking in the water;

a scene … in a country diner during which one of theyoung people makes his exit after a full meal withoutpaying the bill;

a murder falsely implicating the trio; and a pursuit during which at least one young person is

murdered.141

The court declared all these similarities to be “themes,”

“plots,” and “stereotype characters.”142 This result appears to

be inconsistent with the analysis provided by narrative theories.

Indeed, many of the similarities listed above can be seen as

embellishments, akin to those that caused court’s doubts in the

Star Wars case, such as the injured or destroyed friendly robot

(No. 9) or the scene of musical entertainment offered by bizarre,

140 Id. at 1389. 141 Id. at 1390. 142 Id.

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non-human creatures (No. 10).143 In addition, as is often the

case, defendant’s access to plaintiff’s work was obvious in

Midas. Thus, there was no real doubt that the defendant had

copied plaintiff’s work. However, the court refused to find that

any infringement resulted from such copying, emphasizing that its

decision hinged on the existence of a large number of similar

movies that appeared “both before and after”144 the plaintiff’s

script was written.

For an art critic, that fact would only confirm that all of

those film makers copied each other’s work, and there should be

multiple infringement actions, many of them potentially

successful. But the court’s remark does signal an important

difference between the artistic achievements that Star Wars and

Macon County Line represent. In Star Wars, a new genre was created,

and the defendant’s film Battleship: Galactica was the first “second-

comer” to exploit that genre. Thus, the task for the Star Wars

court was to delineate the new genre and separate its non-

143 See note Error: Reference source not found supra.144 437 F. Supp. at 1390. A year after making Macon County Line, the defendant himself produced its semi-sequel Return to Macon County, see Biography for Richard Compton, http://www.imdb.com/name/nm0174068/bio.

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copyrightable structure from its individual embodiments, i.e. the

two competing movies with their potentially protectable

differences. In Midas, on the other hand, neither of the two

films involved was breaking new ground. Rather, both were safely

positioned within the boundaries of an established genre, which

has been recreating itself in countless embodiments both before

and after plaintiff’s screenplay.

It is a characteristic of popular culture that it thrives on

constant reincarnation of familiar scenes or sequences of events.

Tsvetan Todorov describes a mass-cultural approach to the

relationship between a genre and its individual representatives

as “one says it all.”145 Rather than a transgression of the

established norms, conformity with them is required because to

develop the norms “is also to disappoint them.”146 In the case of

the “’60s road movie” genre discussed in Midas, whose another145 Tsvetan Todorov, The Typology of Detective Fiction, in THE NARRATIVE READER 120, 121 (Martin McQuillan ed., 2000) (“If we had properly described the genres of popular literature, there would no longer be an occasion to speak of its masterpieces. They are one and the same thing; the best novel will be the one about which there is nothing to say.”).146 Id. In generalizing his point, Todorov asserts the existence of a split of the aesthetic norm in the modern society, resultingin each aesthetic category having a different meaning in “popular” art and in “high” art. Id.

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famous representative is Easy Rider, the familiar scenes that the

viewers expected to see happened to include nude frolicking in

the water, an unpaid meal at a country diner, camping out

followed by a pursuit and a murder, and the others listed in the

opinion. Most of these scenes would most probably constitute

embellishments in Eco’s classification and would therefore belong

to the works’ expression.147 Still, the Midas court was not

inclined to protect them.

The contradiction outlined above requires us to search for

another basis for the court’s reasoning. We will start by taking

another look at Learned Hand’s model and asking whether this

model can work with the narratives of the mass culture. As

discussed above,148 Hand’s model of a series of abstraction levels

with its sliding line separating the protectable from the non-

protectable has been a constant source of confusion because he

did not create any categorical safeguard that would prevent such

fluidity. The effortless transition of the idea into expression,

147 In fact, as discussed above, Professor Chafee thought that sequences of events should be categorized as expression. See supra text accompanying note Error: Reference source not found.148 See supra text accompanying note Error: Reference source not found.

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and vice versa, is only possible because in Hand’s model both

categories are of the same nature. Thus, Patry’s suggestion that

the idea-expression dichotomy approach should be replaced by an

“expression continuum” concept is an accurate interpretation of

Learned Hand’s test.149

However, the perceived drawbacks of Hand’s model would make

sense it we treat it as an example of equitable reasoning,

similar to that used by courts in nuisance or takings cases. We

understand “equitable reasoning” as a method of deciding between

two conflicting interests of the same nature. For example, in

considering two conflicting uses of land in a nuisance action, a

court would have to determine the outcome by weighing “the

gravity of the harm” to one party over “the utility of the [other

party’s] conduct.”150 Decisions in such cases are inevitably ad

149 See 2 WILLIAM F. PATRY, PATRY ON COPYRIGHT § 4:36 (“The idea-expression terminology should be abandoned in favor of “expression continuum,” since that phrase at least makes a stab at describing both the task and the nature of the inquiry: The task is identifying expression, and the nature of the inquiry is finding where on a continuum of possible expression the material at issue fits.”).150 RESTATEMENT (SECOND) OF TORTS, § 826 (1976).

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hoc and highly fact-specific, with the result often stated by

saying that the losing party “simply went too far.”151

Similarly, in copyright cases courts weigh the interests of

the market versus the interests of individuals with respect to

possession of rights in certain expression. It is clear that the

market as a whole wants to keep the expression in “common”

possession so it could be used by multiple market participants.

The constant reincarnation of a popular genre is thus demanded by

mass culture, and the market supplies it. Similar movies released

over an extended period of time complement the market’s needs,152

the success of each predecessor necessarily makes all its

expression “a proven commodity” destined to generate maximum

profits153 and, in accordance with mass culture mechanisms,151: Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922) (“The general rule at least is that while property may be regulated to a certain extent, if regulation goes too far it willbe recognized as a taking”).152 See Igor Dubinsky, The Race to the Box Office Leads to Cinematic Déjà Vu: Modifying Copyright Law to Minimize Rent Dissipation and Copyright Redundancy at the Movies, 29 WHITTIER L.REV. 405, 431-32 (2007).153 See, e.g., Benjamin A. Goldberger, How the “Summer of the Spinoff” Came To Be: The Branding Of Characters In American Mass Media, 23 LOY. L.A. ENT. L. REV. 301, 302 (2003) (“The modern entertainment conglomerate is a business--and it acts like one. This means reusing proven commodities whenever possible in order to ensure the largest profits.”).

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everybody rushes to repeat it. Thus, if, in fact, courts are

basing their decisions in infringement cases on equitable

considerations, what is the logic that guides them in weighing

the conflicting interests?

In her study of courts’ application of the idea/expression

dichotomy to literary works, Amy Cohen notes that a court's view

of what constitutes the “idea” is often influenced by how novel

or creative the court considers the works at issue to be.154 As a

case in point, Cohen compares the different outcomes in Nichols

v. Universal Pictures Corporation155 and Twentieth Century-Fox

Film Corp. v. Stonesifer.156 Both cases dealt with infringement of

plays and in each, the two works at issue “arguably had very

comparable degrees of similarity and of difference.”157

Nevertheless, the respective courts found infringement in

Stonesifer, but denied the claim in Nichols. Cohen’s proposed

explanation of these results is that the court's determination in

Nichols reflected its view that “stories of star-crossed lovers154 See Cohen, supra note Error: Reference source not found, at 212.155 45 F.2d 119 (2 Cir. 1930), cert. denied, 282 U.S. 902 (1931). 156 140 F.2d 579 (9th Cir. 1944).157 See Cohen, supra note Error: Reference source not found, at 223.

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are too common to be protectable.”158 The court in Stonesifer, on

the other hand, “found the story of a young woman living in a New

York City residential hotel to be novel and creative enough to

merit broader protection.”159

Cohen also stresses the novelty considerations in her

overall conclusion that the idea/expression dichotomy is little

more than a euphemism for judges’ determination of what is

“meritorious” in a given work, noting that judges consider

“novelty” among other factors.160 Whatever “meritorious” might

mean from a market standpoint, it seems that in copyright cases,

especially those involving works with popular appeal, the courts’

equitable weighing of the parties’ interests simply consists in

determining whether the expression at issue has been repeated

sufficient number of times in works of others. If so, it can be

efficiently “dropped” into the public domain as an unprotectable

158 Id.159 Id. (“The more established and ‘old hat’ the basic idea seems to the decision maker, the more likely the details that express that idea will also be considered too established and ‘old hat’ and thus unprotectable.”).160 Id. at 230.

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genre or set of ideas. Otherwise, the court may deem it

sufficiently “novel” to warrant temporary protection.161

Ironically, Learned Hand’s test works perfectly in such a

context. Its “arbitrariness” and high dependency on the precise

factual situation is an unavoidable trait of equity. The fact

that the “idea” and “expression” in his model have the same

nature and really constitute an expression continuum is actually

required by the logic of an equitable inquiry. Finally, if

understood this way, the test is free of the inherent

contradiction between the task it is called on to achieve (i.e.,

separating protectable and unprotectable elements in a work of

art), and the means it employs to solve this task (i.e., applying

161 In trying to “free” more and more expression for public domain, which is what a mass culture market seems to demand, courts have apparently developed an “inverse copyright logic,” declaring that too much protection stifles authors’ creativity. See, e.g., the following observation by the Second Circuit:

It is a fundamental objective of the copyright law tofoster creativity. … By assuring the author of anoriginal work the exclusive benefits of whatevercommercial success his or her work enjoys, the lawobviously promotes creativity. At the same time, it candeter the creation of new works if authors are fearfulthat their creations will too readily be found to besubstantially similar to preexisting works.

Warner Bros. Inc. v. American Broadcasting Companies, Inc., 720 F.2d 231, 240 (2d Cir. 1983).

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the aesthetic categories of “idea” and “expression,” which would

require special knowledge on a judge’s part). If viewed as an

equitable tool, the test becomes just another method of weighing

conflicting interests of the parties – the task that can be

achieved within jurisprudence through equity analysis, which

courts have been doing for centuries.

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III. Idea as Genre. Conceptual Art and Copyrightability

A. Readymades (Duchamp, Warhol, Peter Fischli and David

Weiss)

We have seen that for all practical purposes, the

abstractions test is used by the courts as a means to separate

novel features in works of art from those that were already

present in them before plaintiff’s creation. This raises the

specific problem of the creation of new genres. A good number of

new genres come into existence out of the tendency of art to

transcend its own limits.162 Tsvetan Todorov described how new

genres were created in classical literature using the example of

the “Stendhalian novel.”163 The same happened with every first-

rate Russian novelist in the 19th century, starting with

Pushkin’s Onegin, and all the way to the “Tolstoyan” and162 See supra text accompanying notes Error: Reference source not found - Error: Reference source not found.163 TODOROV, supra note Error: Reference source not found, at 121 (“The major work creates, in a sense, a new genre and at the sametime transgresses the previously valid rules of the genre. The genre of The Charterhouse of Parma, that is, the norm to which this novel refers, is not the French novel of the early nineteenth century; it is the genre ‘Stendhalian novel’ which is created by precisely this work and a few others. One might say that every great work establishes the existence of two genres, the reality of two norms: that of the genre it transgresses, which dominated the preceding literature, and that of the genre it creates.”).

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“Dostoyevskian” novels. The following discussion is an attempt

to describe how out of the “suicidal” tendencies of art, the

genre of readymades was born in the 20th century.

The first artist who took pre-existing, mass-produced

objects and presented them in a gallery context as works of art,

was Marcel Duchamp, whose famous telegram we discussed in the

introduction. In 1913 he made the Bicycle Wheel, featuring a

bicycle wheel mounted by its fork on a painted wooden stool, and

in 1917, the well-known Fountain, discussed below. The first real

readymade not modified in any way by the artist was, however, his

Bottle Rack of 1914 - a typical metal rack used for drying bottles,

bought at a town hall bazaar.164

Duchamp explained that, in choosing objects for readymades,

aesthetic pleasure and aesthetic judgment are to be eliminated

from the set of possible human reactions to the world.165 In other

164 One of its copies licensed by Duchamp is on display at the Norton Simon Museum in Pasadena, CA.165 PIERRE CABANNE, DIALOGS WITH MARCEL DUCHAMP 48 (1971) (“[Y]ou have to approach something with indifference, as if you had no aesthetic emotion. The choice of readymades is always based on visual indifference and, at the same time, on the total absence of good or bad taste.”).

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words, Duchamp, by “simply letting things go by themselves,”166

was striving for an ultimate confusion between art and life

objects. We don’t know what kind of reaction Duchamp expected to

cause by his readymades. The episode with the Trap (1917), a

coat rack which was simply not recognized as art during its show

because it was placed near the entryway,167 probably amused him.

Still, both the world and art were supposed to be transformed

after readymades were introduced.

However, the usual happened. Art appropriated readymades as

a new genre. It flourished in the 1960s, starting with Andy

Warhol’s 1964 exhibition in New York’s Stable Gallery, which

consisted of 400 large replicas of supermarket product boxes for

brands such as Heinz, Del Monte, Mott’s, and Kellogg’s,168

continued in the “commodity sculpture” in the 1980s, and is alive166 RUDOLF E. KUENZLI & FRANCIS M. NAUMANN, MARCEL DUCHAMP. ARTIST OF THE CENTURY 81 (1989).167 Readymades of Marcel Duchamp, http://en.wikipedia.org/wiki/Readymades_of_Marcel_Duchamp.168 Originally, most readymades were not received well by fellow artists, but had a better response from the public. Duchamp’s Fountain was hidden from view during the show, after much debate inthe Society of Independent Artists about whether or not it was art. Duchamp had to leave the Society. See CABANNE, supra noteError: Reference source not found, at 55. However, Andy Warhol’s show attracted a line that stretched around the block, despite mostly negative critics’ reviews.

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and well nowadays. Its latest representatives, Peter Fischli and

David Weiss, create illusory functional objects, i.e. imitations

that cannot be distinguished from functional objects other than

by touching them, which is impossible in the museum and thus

never happens.169

From a copyright perspective, readymades should not be

protectable. The Fountain, which was a standard Bedfordshire model

urinal purchased from the J.L. Mott Iron Works at 118 Fifth

Avenue, certainly lacked creativity. Duchamp deliberately

inscribed “R. Mutt 1917” on the object, marking a hidden

reference to the plumbing supplies company. While the absence of

aesthetic criteria sought by Duchamp is perfectly in accord with

the creativity standard set by Bleistein,170 an argument that the

utilitarian function of a Fountain, or a Trap is at least partially

eliminated by placing the object in a museum has not found

support in courts. Thus, in Carol Barnhart Inc. v. Economy Cover

169 See Tate Gallery’s announcement of the Swiss modern artists Fischli & Weiss’ sculpted simulations exhibition, Fischli & Weiss, http://www.tate.org.uk/modern/exhibitions/fischliandweiss/rooms/room10.shtm (last visited Oct.16, 2008). 170 See discussion supra p. 21.

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Corp.,171 the court stated in dicta, “Almost any utilitarian

article may be viewed by some separately as art, depending on how

it is displayed (e.g., a can of Campbell Soup or a pair of ornate

scissors affixed to the wall of a museum of modern art). But it

is the object, not the form of display, for which copyright

protection is sought.”172

Even if we interpret the act of taking a useful article to a

museum as creating a work of art, the question of its

copyrightability will still remain open. In addition, we will be

faced with the familiar problem to which all conceptual art seems

to be prone: how do we “affix” an artistic context to the newly

created art object? What happens to this context when a collector

buys the piece and brings it home? Does the work preserve its

artistic “aura” or does it disappear, like the original Fountain,

presumably thrown out by Duchamp’s friends after the first

show?173

It is worth noting, however, that Duchamp defended the

Fountain from the charge of absence of creativity on the grounds

171 773 F.2d 411 (1985).172 Id. at 419 n.5.173 CALVIN TOMKINS, DUCHAMP: A BIOGRAPHY 186 (1998).

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of the new context and the new thought: in an unsigned article in

The Blind Man, a one-shot magazine published by his friend Beatrice

Wood, he replied to his critics, “Whether Mr. Mutt made the

fountain with his own hands or not has no importance. He CHOSE

it. He took an ordinary article of life, placed it so that its

useful significance disappeared under the new title and point of

view — created a new thought for that object.”174 Thus, the

unavoidable contradiction between copyright law’s and art

theory’s view of objects such as the Fountain is that the

originality of Duchamp’s idea is worth very little in current

copyright law terms, while it may have ushered in a new era in

the history of art.175

B. Ideas as Expression (Rauschenberg)

A more intricate case is presented by the Erased De Kooning

drawing by Robert Rauschenberg. According to Rauschenberg’s

174 Id. at 185. Ironically, the real “creator” of the fountain, the company named J.L. Mott Iron Works, had unsuccessfully tried to obtain a copyright protection for some of its designs in 1897.The urinal, however, was not part of the designs in question. SeeJ.L. Mott Iron Works v. Clow, 82 F. 316 (7th Cir. 1897). 175 In December of 2004, Duchamp’s Fountain was voted the most influential work of modern art by a poll of 500 art experts. See Duchamp’s Urinal Tops Art Survey, http://news.bbc.co.uk/2/hi/entertainment/4059997.stm.

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account, “as ridiculous as it might seem”, he was trying to make

a drawing “in all whites,” and kept making drawings and erasing

them, but each time the drawing would just look like an “erased

Rauschenberg.”176 So he decided that his drawing had to begin as

important art, and in order to be important, it had to be a De

Kooning drawing. He went to De Kooning, who was already famous at

the time, and asked him for one of his drawings after explaining

that he was going to erase it. De Kooning wanted to choose the

piece that he was actually going to miss, and also one that would

be hard to erase. It turned out to be a piece with crayon,

charchoal, oil paint, and pencil on it, and it took Rauschenberg

about a month to erase it.177

The obvious question this episode raises is whether the

erased drawing is copyrightable.178 Apparently, being “all white,”

176 See Robert Rauschenberg - Erased De Kooning, http://www.youtube.com/watch?v=tpCWh3IFtDQ (last visited October 16, 2008) (interview with Rauschenberg telling the story).177 Id.178 A further interesting inquiry would be to ask whether, if we do find protectable expression in Rauschenberg’s work, it would not interfere with the underlying work’s owner’s right to create or license subsequent derivative works. See Entertainment Research Group, Inc. v. Genesis Creative Group, Inc., 122 F.3d 1211, 1200-21 (9th Cir. 1997). Wasn’t De Kooning left with nothing to license as a result of Rauschenberg’s erasure?

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as Rauschenberg wanted, it can’t be protected because there is no

fixed expression, and the idea of erasing a drawing is just an

unprotectable idea. On the other hand, not unlike Barthes’ pizza

advertising, this particular sheet of paper definitely has an

artistic meaning, and possibly more than one.

First, it was important for Rauschenberg that he would erase

an acclaimed masterpiece rather than one of his own (and not so

well known) drawings because the work was to serve as a reminder

of a lost De Kooning. Second, this was the new way of mourning an

artistic loss devised by Rauschenberg. Third, it expressed

Rauschenberg’s perceived artistic victory over De Kooning in

becoming a threat to De Kooning and his co-author at the same

time.179 Fourth, it’s an image of loss – of what’s left in the

world after art has died. Fifth, in a way, the story is a

metaphor of art as ideal reincarnation of what’s irretrievably

lost in the material world. And, finally, having nothing to do

with expression, but belonging to the realm of behavior, - there

was in this shtick an audacity of a young artist, his desire to179 Rauschenberg begins his interview by saying, “I was making paintings, but they (‘masters’, including De Kooning) did not notice and did not feel threatened.” See Rauschenberg, supra noteError: Reference source not found.

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become famous by provoking a scandal, which for him would be a

sign of artistic novelty and in a way would perform, as in fact

did happen, his initiation into the life of a big artist.

The question that has to be asked, though, is where is all

that meaning fixed? The label under the erased drawings states,

“Erased De Kooning Drawing. Robert Rauschenberg 1953.” That

label, together with the white sheet of paper with traces of

eraser on it, is the only fixed expression in copyright terms

that we can identify. Still, it preserves at least a significant

part of the drawing’s artistic meaning.

This brings us to the central problem posed by works of

conceptual art, which is that their main artistic value is found

outside of the works themselves. The connection between the final

product, whether a telegram or an erased drawing, and the

sequence of events imbued with the artistic energy that leads to

that product is so loose that the main “creative act” takes place

outside of the fixed expression, in the area of the artist’s

behavior.180 This phenomenon is rooted, and was first

180 The same was true for the viewer of conceptual art who was expected to take a hammer and drive down a nail right in the exhibition hall.

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theoretically recognized, like many other artistic forms, in the

romantic era, with its view of the artist as someone whose main

creation (more important than his novels, poems, and paintings)

is his own life which is constructed and perceived as an artistic

narrative, worth of fixing, remembering, retelling, etc.181

Thus, the artist spends a significant part of his artistic

life conceptualizing and then implementing his acts of “life

creation.”182 In some cases, the implementation may take the form

of a text, albeit somewhat rudimentary (such as Duchamp’s

telegram). In others, there may just not be any definite fixed

expression implementing a particular creative act. To illustrate

the latter scenario, let’s look at Rauschenberg’s story again. It

is significant that while telling it in his interview,

Rauschenberg mentioned several times his original hope that De

Kooning either would not be home (“and then this will be the

story”), or that he would refuse to spare the drawing (“and then181 For a description of the genesis of this phenomena, see ViktorZhirmunskiy, Religioznoe otrechenie v istorii romantizma [Religious abdication in the history of romanticism] (Мoscow, 1919).182 For a detailed description of the forms the “life creation” took in the Russian modernism, see IRINA REYFMAN, RITUALIZED VIOLENCE RUSSIAN STYLE: THE DUEL IN RUSSIAN CULTURE AND LITERATURE (Stanford University Press, 1999).

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that will be the story”).183 In both instances, there would have

been no erased drawing, but the act of “life creation” would have

still been accomplished, and fixed in a story.184

183 See Rauschenberg, supra note Error: Reference source not found.184 From a copyright perspective, however, none of these stories would be protected. If we treat them as performances, they are not fixed. If we treat them as literary narratives, the most we can get is protection against literal copying as the content of such a story will be considered uncopyrigtable facts.

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CONCLUSION

This work started from my belief that theories of art can

enhance courts’ reasoning in the application of idea/expression

dichotomy and thus increase the level of predictability of the

outcome of their decisions. Implied in this belief was the

assumption that law is compatible with theories of art, and has

enough flexibility to accommodate them without changing its own

precedents.

It turned out that law already has its views on art. They

might not have been reflected enough to constitute complete

theories, but they certainly reflect them. The theories as they

are reflected in various decisions are conflicting, and are

indeed responsible for courts’ inconsistencies in the application

of the dichotomy. I tentatively called them the “Bleistein” and

“Sarony” approaches. The first is seemingly self-explanatory, but

objectively leads to limiting the number of works afforded

copyright protection. The second is so novel that it has confused

the court who intuitively tried to apply it. We maintain that

courts should try harder, and with a little bit of education from

semiology, confusion in the works of visual art can be cleared.

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At the same time, the analysis of application of Learned

Hand’s model to mass culture narratives revealed that the model

is a metamorphosis of equity analysis. The beauty of it is that

it lies completely within the law, therefore it is an adequate

instrument for legal solutions. Its complete independence from

external knowledge turns out to be an advantage, providing

uniformity of instrumentality and problems it is applied to.

Thus, the article provides both the reasons for mutual

interest copyright law and structural poetics could have in each

other, and explanations why, up to this day, “the twain” have

never met. There is, however, a certain balance in their

relationship that should be maintained, and the author hopes that

her research may support it.

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