Written by attorney Charles E. Colman

How can I keep other people from stealing my idea?

"How can I keep other people from stealing my idea?"

This seemingly simple question has bedeviled many an attorney practicing so-called "soft IP" law (shorthand for copyright, trademark, and basically all other intellectual property besides patents.) If you're interviewing a potential attorney, and he has to stop and think before answering this question, that is probably a good sign. Hire him.

Why is this a tough question? Because, as one Missy Chase Lapine (better known as Jessica Seinfeld's legal nemesis) learned the hard way, ideas are a tough sell under the U.S. Copyright Act. As Section 102(b) of the Act states in oppressively lawyerly fashion:

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.

(Emphasis mine; phrasing Congress 's.)

Or as the Second Circuit Court of Appeals has explained in less oppressively lawyerly fashion, "[i]t is an axiom of copyright law that the protection granted to a copyrightable work extends only to the particular expression of an idea and never to the idea itself."

(Be aware that some of the items in the § 102 list -- "methods of operation," "discoveries," etc. -- may be protectable under patent law, but only under circumstances that those science-y "hard IP" lawyers can explain to you.)

The Second Circuit's rule sounds simple enough; the thing is, it can prove difficult to apply to concrete, real-world disputes. For example, if someone writes a book about clever ways of "sneaking" vegetables into children's food, and someone else decides to write a book with the same goal but different recipes to use on the unwitting and undernourished children, has the first writer's copyright been infringed? Nope and nope (again, on appeal.) At least, not when the "total look and feel of the two works" -- that is, the expression of the underlying idea -- is readily distinguishable.

Fair enough (at least, as far as Ms. Seinfeld is concerned.) But once you get to the visual arts, as one federal judge recognized in a 2005 case, the good old idea/expression dichotomy "breaks down." The reason: "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."

Yet the courts have dutifully pressed on, bravely resolving disputes that hinge on an arguably nonsensical question.

For example, in one case, a federal court ruled that a Kate Spade advertisement showing "a woman's feet, astride a toilet, in stylish, colorful shoes, with a handbag on the floor," merely embodied "an idea that has been used often in popular culture." Talented but out-of-luck fashion photographer Bill Diodato's earlier, unmistakably similar photo, failed to persuade the court that any legal wrong needed right-ing.

More recently, another talented fashion photographer, David LaChapelle, sued Rihanna for similarities between the music video for her song "S&M" and an earlier series of S&M-themed photos by LaChapelle.

It seems fairly obvious in both the Kate Spade and the Rihanna cases that the second work was indeed "derived" from the first (to use LaChapelle's term.) But if the only thing copied was an idea, that "derivation" may not matter, since -- once again -- you can't copyright ideas.

Then again, copyright isn't always the whole story in intellectual property disputes. Its loyal sidekick, trademark, has a way of popping up in just about every copyright dispute this writer covers. Why? If you can, ignore the pictures and focus on the text of this Daily Mail article for a moment -- in particular, the passage stating that "fans were buzzing about the video and wanting to know if David had directed it." If you're acquainted with the U.S. Lanham Act (or maybe even if you're not), you know that trademark infringement is, at root, about confusion. Or more precisely, likelihood of confusion "as to the origin, sponsorship, or approval of . . . goods [or] services." Unsurprisingly, one of the factors courts consider in assessing the likelihood of confusion in a given case is evidence of actual confusion. So if LaChapelle can turn this little anecdote about fan confusion into evidence that a judge (or jury) finds reliable -- say, a methodologically sound survey -- he might just have a successful trademark infringement claim on his hands. (Note: A 2003 Supreme Court case called Dastar may preclude some trademark claims based on false authorship, but that discussion will have to be saved for another day.)

Another important caveat to the general "no protection for ideas" rule is a resilient state-law doctrine called "theft of idea," which is typically premised on a theory of implied contract -- namely, "I'll share my idea with you under the mutual understanding that, if you like it, you'll pay me in order to use it." As one might expect, courts have considered whether these state-law "theft of idea" claims are " preempted" by the federal Copyright Act. But according to the leading federal circuit court precedent on point, the verdict is No Preemption. At least, not if one's "theft of idea" claim requires some "extra element" that a copyright claim would not. (Other state-law causes of action have been used to right the wrongful taking of ideas, but alas, we'll have to save those for another day.)

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