Continuing the thread if not the theme of the last three blogs, today's is on the idea-expression dichotomy, prompted by a June 27, 2005 opinion in Reed v. Peterson, by Judge William Schwarzer of the ND California. The case was brought to my attention by Cathy Kirkman of Wilson Sonsini, who runs the fantastic SVmedialaw blog, which I highly recommend.
Reed wrote a book called "Football Clock Management." The book advocated that coaches and players use prescribed offensive and defense strategies for managing time during a football game. Defendant wrote a competing book called "The Football Coaches' Guide to Clock Management." As if Baker v. Selden never existed, plaintiff in Reed apparently claimed a copyright "in the use of principles and rules as a method of instruction of clock management." Judge Schwarzer quickly dispatched the claim (but without citing Baker), noting the bad things that would happen if plaintiff prevailed as well the thin nature of copyright in factual works. His opinion is a solid discussion of frequently-recurring issues.
Baker v. Selden is often referred to as "about" the idea-expression dichotomy, even though it never used the word idea or really discussed the concept. I think of Baker as a "blank form" case, derived from the very end of the opinion which expresses the Court's actual holding. But if Baker is an "idea-expression dichotomy case" what does that mean? Indeed, what does it mean to say that Section 102(b) "codifies" the dichotomy? We would have to know what the dichotomy is at the least, why it is a "dichotomy," and how we can use it.
In a recent case in the SDNY, discussed in a prior blog involving photographs, Judge Kaplan doubted that the idea-expression has any application beyond literary works, and certainly none to visual works. Reed involved a literary work so it could have application even for Judge Kaplan. In the end, though, I think we are better off if we appreciate that the idea-expression dichotomy is not an analytical tool; it is not a test; "idea" and "expression" are simply labels that reflect that some material is protected and some isn't, and that determination is always after-the-fact. See Veeck v. SBCCII, 293 F.3d 791, 816 (5th Cir. 2002)(en banc)(Judge Weiner, dissenting); Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 742 (9th Cir. 1971).
"Idea" and "expression" are not categories that have content; they do not express set characteristics; they are just metaphors by which we pretend we are reasoning a priori, when in truth we are engaged in fact-finding.