Who Owns An "Idea" Anyway? II - The Unique Expression
In our last discussion of intellectual property ownership, I spoke about how ideas can’t really be possessed.
The example of an idea I used was “A psychologist must uncover the secret of a child who claims to see ghosts.” My point was that even though this was the idea of The Sixth Sense, Disney didn’t own it any more than I.
And that’s true…in a sense. It’s also not true. And the reason—something called the idea-expression dichotomy—goes to the very heart of what we create and what we own.
The Idea-Expression Dichotomy
An idea is a universal and non-specific concept, like, say, “horse.” We all know what “horse” means, and none of us can own the concept of horse.
However, if you express the ideation of “horse” as a painting, well…congratulations. You have crossed the boundary from unownable non-property to very ownable intellectual property. Your expression belongs to you, and with that act of expression, you have earned copyright protection.
There’s just one small catch, and it’s a reasonable one. Your expression must be unique, i.e. you can’t go and express a novel that contains large sequences of words found in The Amazing Adventures of Kavalier and Clay without Michael Chabon suing you.
So, with all that under our belts, let’s go back to my example.
“A psychologist must uncover the secret of a child who claims to see ghosts.”
The idea that this represents is not ownable. Anyone may use it as they see fit.
The expression of this idea in this specific fixed form with those specific 14 words in that specific sequence is ownable. Theoretically, the first person to write those words in that order can argue that they are a unique literary expression in fixed form. No one else is free to publish those 14 words in that specific order.
Now, the fact of the matter is that one could make an excellent argument that this 14 word combination just isn’t unique enough to be protected. Determining what’s unique and what isn’t is the reason courts exist. And even if you did show that it was unique and therefore your intellectual property, it’s not very valuable intellectual property (making an infringement suit sort of pointless, since no real damage can be demonstrated).
Nonetheless, we can say the following with some certainty.
- Ideas are not ownable.
- Unique and complex expressions of ideas are ownable.
- Original treatments and screenplays are uniqe, complex expressions of ideas.
Again, this is all relevant to how one determines authorship in a contributory situation like screenwriting. When one reads multiple versions that have combined to make one single version, it ought not matter who had an “idea.” The only thing that ought to matter is whose unique literary expression of an idea (his, yours, ours, no one’s) has been passed through to the final product.
Note that dialogue is not the only test of expression! The following are all valid and fixed forms of literary expression in screenplays.
- Scene order
- Described action
If you read the MBA chapter that discusses screen credits, you’ll find that screenplay and story are defined by combinations of these elements. The one word you will not see is “idea”.
In other words, scenes and the sequential arrangement of those scenes, descriptions, places, characterizations and specific dialogue are all copyrightable and protected.
I’ll make it even easier.
If it can be perceived directly from the words on the page, it’s expression. If it turns out that it’s unique expression, then it’s copyrighted.
At least, that’s how I see it. And think about it: if you read the script for Rocky, would you ever see the following words?:
A palooka and his mentor take one last, desperate stab at the big fight.
Of course not. That’s the idea behind it all, and you’re welcome to it.
So, what’s the practical upshot? If you want to write a movie about a palooka and his coach, then write it. If you want to write a movie about a young kid in the future who uses mystical powers and swordplay to battle an evil galactic emporer, then write it.
Still, you’ve got to be very careful. If anything in your script resembles any of the expression in another film, you can end up in serious trouble. Ideas are public property. The expression of ideas is private property.
And in this town, trespassers are usually shot on sight.