Many authors labor under the misconception that copyright law exists because they have a natural, God-given right to control their artistic product. Not so. Copyright serves not the author but rather the broader culture. The wide dissemination of expressive works—e.g., books, movies, songs, video games—enriches a democratic society. Because copyright law allows the author to make money from her books and stories, she has an incentive to create. (The money-making part is theoretical for many, if not most, writers, but that’s the subject of another blog post.)
There’s an important limitation on copyright. Copyright protects the expression of an idea but not an idea itself. As the California Supreme Court put it sixty years ago in a case involving legendary film director Billy Wilder, “ideas are as free as the air.” This means that any author can use the idea of a deadly, handsome, debonair British spy. Just don’t express the story or character in a way that’s substantially similar to James Bond.
Neither does copyright protect facts, even unknown facts that a historian uncovers through exhaustive research. Again, only the expression of the history has copyright protection.
There’s good reason why copyright doesn’t extend protection to mere ideas or facts—the constitutional right of free speech. The United States Supreme Court has held that this so-called idea/expression dichotomy is one reason why the copyright laws don’t violate the First Amendment. Ideas and facts are the building blocks for writers. If a few authors could monopolize ideas or facts, later aspiring authors would be stifled. For example, the universe of science-fiction works would be much poorer if H.G. Wells had had a monopoly on the idea of aliens from space invading earth.
So, what does this mean for writers?
First, a writer has the right to take ideas from earlier works. Beware, though: the line between idea and expression is often blurry. As the great copyright jurist Learned Hand wrote, “Nobody has ever been able to fix that boundary, and nobody ever can.” Certainly, at the most abstract level—think a story about a hardboiled detective in Los Angeles—the line between idea and expression is obvious. But what about works that have greater similarities? If Shakespeare still had an existing copyright in Romeo and Juliet, could he sue the authors of West Side Story for taking the expression of his play? Or do the similarities between these stories fall on the idea side of the line? To paraphrase Judge Hand, no one will ever know. So, be very careful in borrowing numerous elements from a work that’s protected by copyright.
Second, the idea/expression dichotomy means that if you have a good idea and you’re worried that someone else might use it, keep the idea to yourself. Let’s go back to Desny v. Wilder, the case mentioned above. The court said, “The idea man who blurts out his idea without having first made his bargain has no one but himself to blame for the loss of his bargaining power.” Which means that if you tell others about your idea at a cocktail party, post it on your website, or tweet it on Twitter, others are free to use it. Or, if you send your novel out unsolicited, the recipient can use your idea (but not your expression) free from liability. In the parlance of old Hollywood, you can’t throw your story “over the transom” and then complain that someone used your story idea.
Third, we’re dealing with the law here, so you should know that despite what I’ve written above, ideas are not always free as the air. Because, while copyright law won’t protect an idea, sometimes contract law will—if the parties enter into an actual contract. The issue arises most often in the motion picture industry but also applies to book and music publishing. A basic, oversimplified example: Wendy Writer and Paul Publisher sign an agreement providing that Wendy will disclose her idea for a novel on the condition that Paul will pay her the reasonable value of the idea if he later uses it. If Paul uses the idea without paying Wendy, he’ll be liable for a breach of contract.
Such express written contracts are rare. Most often, the issue in lawsuits is whether the parties entered into an implied contract to pay for an idea. An implied contract is just like any contract, but it arises from actions, not words. Let’s go back to the classic Desny v. Wilder case. The plaintiff, Victor Desny, called Billy Wilder’s secretary and told her he had an idea for a movie based on an actual mine disaster involving a man named Floyd Collins—a real life person. So, the case dealt with general ideas and actual facts that couldn’t get copyright protection. The secretary asked Desny to summarize the story, which he did. She then said she’d talk to her boss and also asked Desny to write a summary of his story. Desny called back a couple of days later, and the secretary asked him to read his summary. Wilder eventually came out with a movie called Ace in the Hole, based on the Floyd Collins mine disaster.
Desny sued for breach of contract, alleging that his calls to Wilder’s secretary created an implied contract with Wilder. Interestingly, the California Supreme Court said that no contract arose as a result of Desny’s first phone call. That’s because he’d in essence “blurted out his idea.” However, the court went on to hold that Wilder had solicited the second phone call and that an implied contract could arise because Wilder, through his secretary, had implicitly agreed to pay for Desny’s idea if he used it.
The practical takeaway for the writer:
- If you believe that your idea has value, keep it to yourself as much as possible. If you disclose it voluntarily, anyone can use it.
- If you have to disclose your idea to get your project made, make sure you’re doing it under circumstances that will give rise to a contract. Often, a scheduled pitch to a publishing company or a solicited pitch to an agent will be deemed to give rise to an implied contract.
- If you have bargaining power (and most fledgling writers don’t, see point 4), get an agreement in writing that if the recipient of your idea uses it, you’ll get paid.
- Ordinarily, writers don’t have bargaining power, and insisting on an agreement described in point 3 can blow a deal. In fact, many motion picture and other companies will require the writer to sign an agreement limiting the company’s liability for using your idea. That’s because these companies face many frivolous lawsuits and have learned to protect themselves.
- Write a good book—most of the time, it’s about the execution, not the idea. Many aspiring authors have good ideas; only a few can express them well. And copyright law does protect expression.