Editing Idea–expression distinction (section)

==Criticism==

A difficulty posed by the idea-expression distinction is that "[n]obody has ever been able to fix that boundary, and nobody ever can", as Judge [[Learned Hand]] wrote for the [[United States Court of Appeals for the Second Circuit|Second Circuit Court of Appeals]] in 1930's ''[[Nichols v. Universal Pictures Corp.]]'', holding that while a fictional character [[Copyright protection for fictional characters|''can'' be copyrighted]], it must be well-developed.<ref>{{cite court|litigants=Nichols v. Universal Pictures Corp.|vol=45|reporter=[[Federal Reporter|F.2d]]|opinion=119|pinpoint=121|court=[[United States Court of Appeals for the Second Circuit|2nd Cir.]]|year=1930|url=https://scholar.google.com/scholar_case?case=14991934121439658064#p121}}</ref> Thirty years later, Hand reiterated that point in a case that held print patterns on fabrics copyrightable: "Obviously, no principle can be stated as to when an imitator has gone beyond copying the 'idea,' and has borrowed its 'expression.' Decisions must therefore inevitably be ad hoc."<ref>{{cite court|litigants=Peter Pan Fabrics v. Martin Weiner Corp.|vol=274|reporter=[[Federal Reporter|F.2d]]|opinion=487|pinpoint=489|court=[[United States Court of Appeals for the Second Circuit|2nd Cir.]]|year=1960|url=https://scholar.google.com/scholar_case?case=7909069540715359056#p489}}</ref>

The extension of the concept to visual art has vexed later courts. In 1978, the [[United States Court of Appeals for the Third Circuit|Third Circuit]] heard ''[[Franklin Mint Corp. v. National Wildlife Art Exchange]]'', where the plaintiff alleged a painter's work for the defendant was so similar to one it had previously commissioned as to be infringing. Judge [[Joseph F. Weis Jr.]] wrote:<ref>{{cite court|litigants=Franklin Mint Corp. v. National Wildlife Art Exchange|vol=575|reporter=[[Federal Reporter|F.2d]]|opinion=62|pinpoint=65|court=[[United States Court of Appeals for the Third Circuit|3rd Cir.]]|year=1978|url=https://scholar.google.com/scholar_case?case=15550455046205765752}}</ref>
{{blockquote|Troublesome, too, is the fact that the same general principles are applied in claims involving plays, novels, sculpture, maps, directories of information, musical compositions, as well as artistic paintings. Isolating the idea from the expression and determining the extent of copying required for unlawful appropriation necessarily depend to some degree on whether the subject matter is words or symbols written on paper, or paint brushed onto canvas.}}
He also observed that under the distinction, a painter's copyright might be dependent on how [[stylization|stylized]] their work was, with a more realism-oriented artist like the one whose works were at the center of the instant case having a more difficult case for copyright infringement than the [[Impressionism|Impressionist]] [[Monet]]. In a case a few years later holding that the television series ''[[The Greatest American Hero]]'' did not infringe on the copyright for live-action depictions of [[Superman]] since the caped, flying superhero on the show had many significant differences, Judge [[Jon O. Newman]] of the Second Circuit commented that adaptations from a textual medium to a visual one created additional problems in resolving idea-expression questions since the former is meant to be perceived linearly while the latter is taken in in its entirety.<ref>{{cite court|litigants=Warner Bros. Inc. v. American Broadcasting Companies, Inc.|vol=720|reporter=[[Federal Reporter|F.2d]]|opinion=231|pinpoint=241|court=[[United States Court of Appeals for the Second Circuit|2nd Cir.]]|year=1983|url=https://scholar.google.com/scholar_case?case=17554376936633340196#p241}}</ref>

In 2005, considering ''[[Mannion v. Coors Brewing Co.]]'', where a ''photograph'' was alleged to have been imitated too indistinctly, Judge [[Lewis A. Kaplan]] of the [[United States District Court for the Southern District of New York|Southern District of New York]] recounted the earlier cases and elaborated on those difficulties:<ref name="Court decision">{{cite court|litigants=Mannion v. Coors Brewing Co.|vol=377|reporter=[[Federal Reporter|F.Supp.2d]]|opinion=444|pinpoint=455–61|court=[[United States District Court for the Southern District of New York|S.D.N.Y.]]|year=2005|url=https://scholar.google.com/scholar_case?case=16977894138805983217#p455}}</ref>
{{blockquote|... [I]t makes sense to speak of the idea conveyed by a literary work and to distinguish it from its expression. To take a clear example, two 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 ... [But i]n the visual arts, the distinction breaks down. For one thing, it 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. An artist's idea, among other things, is to depict a particular subject in a particular way. As a demonstration, a number of cases from this Circuit have observed that a photographer's "conception" of his subject is copyrightable. By "conception," the courts must mean originality in the rendition, timing, and creation of the subject—for that is what copyright protects in photography. But the word "conception" is a cousin of "concept," and both are akin to "idea." In other words, those elements of a photograph, or indeed, any work of visual art protected by copyright, could just as easily be labeled "idea" as "expression" ... [A]t what point do the similarities between two photographs become sufficiently general that there will be no infringement even though actual copying has occurred? But this question is precisely the same, although phrased in the opposite way, as one that must be addressed in all infringement cases, namely whether two works are substantially similar with respect to their protected elements. It is nonsensical to speak of one photograph being substantially similar to another in the rendition and creation of the subject but somehow not infringing because of a shared idea. Conversely, if the two photographs are not substantially similar in the rendition and creation of the subject, the distinction between idea and expression will be irrelevant because there can be no infringement. The idea/expression distinction in photography, and probably the other visual arts, thus achieves nothing beyond what other, clearer copyright principles already accomplish.}}