Copyright Protection: Idea v. Expression

Photographers often find that their great shots are recreated by others.  Check the situation as reported by Alec Soth.  Mr. Soth understandably was aggravated.  But is it copyright infringement?  It depends.

Section 102 of the Copyright Act provides, in pertinent part, that:

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in 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. Works of authorship include the following categories:

(5) pictorial, graphic, and sculptural works;

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

So an idea is not protected by copyright; only the expression of the idea is.  When the idea can be expressed in only one way, then the courts consider the idea and expression to be merged and copyright will not protect the expression either.  Copyright also will not extend to circumstances when the expression embodied in the work necessarily flows from a commonplace idea, known as “scenes a faire,” meaning “scenes that must be done.”

Attorney Nancy E. Wolff prepared an excellent Power Point presentation that includes cases that explain how the courts have handled situations similar to Soth’s.  The issues are addressed in slides 33-51.  Be sure to read the slide notes for additional information about the court’s analysis in each case.

So many of the questions with respect to the Soth image are: whether it included copyrightable elements and whether those elements were copied in the Winter’s Bone image: were the clothesline and house commonplace so it qualified for scenes a faire?;  did Soth orchestrate the image?  Since many of the factors of infringement in these types of cases are subjective and most of these types of cases are settled before the ultimate judgment, it’s difficult to set a bright line test.  My bet would be that the Winter’s Bone image did not infringe Mr. Soth’s photo since he probably didn’t set up the shot and it was commonplace.  It still would be frustrating to be in his shoes.

HT: Steven Ford

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