This article is a best practices guide to understanding protectable expression and how to detect copyright infringement.

It clearly defines ideas, facts, and expression for the copyright context. It systematizes the principles of protectable expression in a philosophically fluid and cohesive way so as to cultivate a true understanding of what copyright protects and how to discern copyright infringement.

THE PHILOSOPHY OF DISCERNING COPYRIGHT INFRINGEMENT
By R.B. Knox

Introduction Detecting copyright infringement is not always as simple of a task as some might expect. There are certain types of situations where it cannot truly be known whether an infringement took place (absent an admission from the infringer). Nevertheless, a decision must be made regarding whether an infringement took place based on its likelihood. In order to properly discern copyright infringement with consistency, one must cultivate a strong feeling for what copyright protects and must familiarize themself with the available devices and constructs used in discerning copyright infringement.

What Copyright Protects Copyright protects expression fixed in a tangible medium, not ideas. However, every strongly protected copyrighted work can be broken down to individual ideas. Thus in truth, copyright does not protect the individual ideas, but certainly protects compositions of ideas by protecting the composition’s unique selection and arrangement of ideas. What copyright protects (expression) is all selection and arrangement. Some selections and arrangements are more expressive than others. The use of extraordinary, colorful, or fanciful wording for example is especially expressive because it would be rare to make such selection in combination with another given idea. Great, non-factual detail also represents an abundance of expression, as so many selections and arrangements are made. Both creative wording and great detail are selections that add up to a lot of originality. The selection or selections that make up an original subject matter represent very strong expression as their originality touches so many other selections. Here original does not necessarily mean purely original – there are various degrees of originality.

March 30, 2013

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rbknox@outlook.com

Selection and arrangement that is very expressive sometimes unconsciously results in the formulation of original subject matter. Someone’s selection and arrangement that unconsciously results in original subject matter proves the selection and arrangement was very expressive indeed. When a purely original subject matter is arrived at, whether spontaneously or eventually, whether consciously or unconsciously, it is like a blossom of the soul. The more expressive a work, the larger bounds it is given to encompass that which may be deemed substantially similar. Originality is an amplifier to the bounds of protection. Although only a modicum of creativity need be present to afford copyright protection, there is simply more expression in things that are more original. In that way, compositions containing more original ideas, or more originality in the combining of ideas, gain more copyright protection. The works that enjoy the largest scope of copyright protection do so because they have a great amount of accumulated originality. A new, purely original larger concept (main theme; main subject matter) of a work is protected from that which is substantially similar by itself. To develop and define something that is purely original, will take the unusual combining of at least a few ideas. In instances where the larger concept is purely or substantially original, adding a great amount of detail and/or original selection throughout the work is rewarded by further expanding the bounds of protection given to the work. This is because the work is that much more original as a result of the detail and original selection added and to not reward it as such would have the effect of narrowing its bounds of protection when being compared against a similar, later work. Further, a vast amount of originality in a work’s selection is rewarded with an expansive bounds of protection because it would be so rare for the author of a later work to make even a substantial percentage of similar selections that it would be highly unlikely for a later author to have done so without copying. The more originality in a work’s selection, the smaller percentage of similar selections need be present in a later work to rule out independent creation. In instances where the larger concept is not very original, great detail may be necessary to obtain protection from something that is substantially similar, but the larger concept will not be protected, and the bounds of protection will be somewhat narrow and specific.1 Once that initial point of protection against something substantially similar is reached, further adding great detail can amplify the bounds of protection. Infringement can occur on the combination of themes level as well, when a substantial amount of themes are similar, as themes represent very prevalent selections. You take the work as a whole when attempting to discern whether there’s been an infringement. Sometimes the work in question is a work within a work (a sub-composition). Identifiable, highly
Main themes, themes, small compositions, and sub-compositions that are very unoriginal and common in the treatment of a subject are also known as scènes à faire. Scènes à faire are not protected by themselves. Inclusion of a scène à faire in a work does not in and of itself increase the bounds of protection given to the larger work much if at all. It is essentially one unoriginal selection. If a great amount of detail is added within a scène à faire, then it becomes protected at that narrow, somewhat specific level. If a scène à faire is used in conjunction with other ideas that it is not typically used with, then it plays a role in adding to the protection given to the larger work.
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expressive bodies of work, within a larger work, are protectable by themselves from that which is substantially similar. An example of such might be a character in a story or a physical section of significant breadth of a painting or text. A very expressive two paragraph section in an otherwise straightforward math book or a very developed character in an otherwise stock story are protected by themselves from that which is substantially similar. Those sub-compositions will be given more protection than the larger work. This is because the protection afforded to the less original and less expressive larger body of work does not provide the appropriate degree of protection to the very expressive sub-composition. Similarly, it is possible for less expressive sub-compositions within very expressive larger works to not be protected on their own from that which is substantially similar. In regards to the very expressive section in a math book example, that which is functional within the section will alone still not be protected from that which is substantially similar. Only the subcomposition as a whole will be protected from that which is substantially similar, and its more unusual combinations will be the largest contributors to its protection.

Ideas and Facts A work is functionally driven if its goal is to present one or more methodologies in a relatively straightforward manner. A work is factually driven if its goal is to make statements of fact or give a historical account(s) in a relatively straightforward manner. A creatively driven work2 is one that is not driven by the goal of doing any of the above. A hybrid work is one that has the goal of telling a story of factual statements, historical accounts, or methodology in a very expressive way. That which are factual statements, historical accounts, or methodologies within a hybrid-work will alone not be protected from that which is substantially similar. Only the hybrid work’s composition (or each of its especially expressive sub-compositions) as a whole will be protected from that which is substantially similar, and its more unusual combinations will be the largest contributors to its protection. A biographical song is one example of a hybrid work. Amongst other things, facts include historical events, factual statements, statistics, individual words, and equations. Nouns, verbs, and adjectives alone are facts, but inserted into a non-factually driven and non-functionally driven context they are typically each ideas drawn from the creative brain. Also, words can combine to form ideas. An idiom often represents one idea that is something other than the sum of its parts. Functionally and factually driven works combine facts out of tradition, proximity, necessity, factual relationship, or function which means they are typically very low on expression. They are accumulations of facts for the sake of fact. Creatively driven works select and combine facts out of expression as they are ideas drawn from the free-range creative brain. Creative works represent a series of ideas formed

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The terms creatively driven work, work of fiction, and mentally inspired work are used virtually synonymously in this article.

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from the concious or unconcious mind. The main expression lies in the unusual combining of ideas. The more unusual the combining of ideas, the more expressive the work. An idea is a type of thought. A fact thought out is just a fact. The thought to select and combine a particular fact into a creative work is a pure idea or inspiration that comes from nothing and is dictated by nothing, just like a completely fictional selection, and it will ultimately be represented as a part of a fictional work (merely an idea). The selected fact did not have to be a fact, it just happened to be. On the other hand, the thought to select and combine a particular fact into a factual work is an idea that is in part dictated by the need for the work to remain factually accurate or function properly, thus it is a more restricted selection, and it will ultimately be represented as a fact. Therefore, whether something is ultimately a fact or an idea is often dependent on what drives the work. Within a work of fiction, all selections are purely ideas even when they resemble real world facts. In a work of fiction, those combinations of selections that resemble those made out of tradition, proximity, necessity, factual relationship, or function only make a small contribution to protectable expression. What we often think of as new functional ideas are really just factual discoveries dictated by the need to solve a problem. Even the creation of a wild hypothesis that does not end up being correct is dictated by the need to solve a problem, and by acknowledging that it might work, the author releases its non-factual nature.

Lifecycle of a Selected Fact

Starts as Factually or Functionally Driven Fact

Selection/ Intermediate Idea State Becomes weak, restricted idea as selection is dictated by need to remain factually accurate or function properly Becomes strong, free-range idea as selection is dictated by nothing

Ultimately Represented as Fact

Creatively Driven

Fact

Part of a fictional work (merely an idea)

If a work is factually and/or functionally driven then the work can only achieve “thin copyright” (protected from actual duplication and one or more of the various types of mimicry later defined herein), so long as it has at least a modicum of creativity in its selection and/or arrangement. Strong protection of works that are factually and/or functionally driven is not the domain of copyright. Individual pages of a factually and/or functionally driven work, without sections that are more expressive, generally should only be able to receive micro-thin copyright (protected from actual duplication, e.g., xeroxing or dubbing). Works that are creatively driven can earn protection from that which is substantially similar and can be referred to as having “high expression” and “thick copyright.” Creatively driven works are ultimately compositions of ideas. Compositions of ideas can achieve thick copyright.

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The inclusion of an entire historical account in a creative work is essentially one selection or one idea. The inclusion of an entire work that is in the public domain in a creative work is essentially one selection or one idea. Things can be selected out as well as in. When a work in the public domain consisting of 100 ideas is selected, and then a couple of its ideas are omitted, that is essentially three selections. When a work in the public domain consisting of 100 ideas is selected, but only 45 of its ideas are included, that is essentially 46 selections. It is most fair to let the midpoint be the determinant of whether things were selected in or out. A literary character having a phone is an idea, a painting having a particular single curved brush-mark is an idea, a song having a particular note is an idea, etc. When the idea that a particular literary character has a phone appears at a particular place in a story’s progression, that is a selected and arranged idea. When a painting has a particular single curved brushmark at a particular location, that is a selected and arranged idea. When a song has a particular note at a particular place in its progression, that is a selected and arranged idea. Such selected and arranged ideas are not protected individually because if it were not for their surrounding combining ideas, they would just be one selected idea. A painting in which an artist attempted to accurately capture an actual scene in nature is all fact. Only an artist’s inevitable inability to accurately capture a scene in nature results in some expression and enables such a painting to receive micro-thin copyright. Only a photo artist’s unique selection of timing and perspective when attempting to capture an actual scene in nature enables the resulting photo to receive micro-thin copyright.

The Requirements For a work to be copyrightable, it must be independently created, meaning some expression containing part of the work had to have been arrived at independently without intentionally duplicating or mimicking another work’s expression. For a work to be copyrightable, it must contain at least a modicum of creativity. The requisite level is exceedingly low. An example of something that would not meet this bar would be something entirely factually driven that also has no creativity in the selection or arrangement of those facts. Access is a requisite for there to have been a copyright infringement. This means in order for an alleged infringer to have infringed an earlier work, he had to have had some ability to access it. If a work is published, then access should typically be presumed. If the two works are so similar to such a degree and in such a way so as to rule out the possibility of independent creation, then access should be presumed. These requirements are somewhat representative of forces that are very inter-related with respect to discerning copyright infringement, especially in certain situations where it cannot truly be known whether an infringement took place.

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Types of Copying 1) Actual Duplication (e.g., xeroxing, dubbing, etc.) 2) Content Mimicry (e.g., word for word copying, by hand painting forgery, etc.) 3) Selection and Arrangement Mimicry: Occurs when the same things are arranged in the same way, but are presented differently. A slight percentage of variation in the selections and arrangements made between the works can still qualify the later work as a selection and arrangement mimicry. 4) Arrangement Mimicry: Typically occurs with factually or functionally driven works. Occurs when there is no expression in the selection in the earlier work because every fact in a category is included, or every fact necessary to make a function is included, but there was expression in the arrangement that was copied. A slight percentage of variation in the arrangements made between the works can still qualify the later work as an arrangement mimicry. An arrangement mimicry also might be presented somewhat differently than the original. 5) Selection Mimicry: Occurs when the same things are selected, but they are arranged somewhat differently or there is no expression in the arrangement. A slight percentage of variation in the selections made between the works can still qualify the later work as a selection mimicry. Also, a selection mimicry might be presented somewhat differently than the original. 6) Substantial Similarity: Occurs when a substantial amount or all of the ideas of a previous work are swapped out with similar things or contextual equivalents and/or a not large enough portion of the previous work’s ideas are omitted altogether. The scope of what should be considered substantial is dependent on the amount of originality accumulated in a work. If the variation in the selections between works is dictated by their respective contexts then they are contextual equivalents. An example of contextual equivalents would be a later work set under water selecting a Poseidon like character when the earlier work set on land selected a Zeus like character.

More on What Copyright Protects Actual duplication of a creative work’s section containing even just two ideas may be an infringement. Here, there is the opportunity to protect against the actual copying/capturing of some high expression. There is a strong burden to prove it is an actual duplication. If the evidence is not conclusive, or cannot be conclusive by its nature, then you cannot prove an infringement because independent creation is highly plausible. Whether or not such an infringement should be allowable or punishable is a moral debate that won’t be entered into here. For something that merely appears to be a mimicry of a two idea body, it would be nearly impossible to prove infringement as independent creation is extremely plausible. In fact, the extreme plausibility of others independently creating the content of any two idea body is to such a degree that protecting it against what appears may be a mimicry should not be allowed. Further, the ability to link two ideas should be preserved as to protect such a body would be too close to protecting the individual ideas themselves. It should take more than just the combining of

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two ideas to rightfully be protected against what appears as mimicry or what may be deemed substantially similar. In a factual or functional work, a small string of ideas may go together out of something other than expression (e.g., function) and thus would not be protected from even actual duplication. The higher the number of ideas that are combined, the more possible combinations of ideas there are, the less restrictive it becomes to protect the combination, and the less likely it becomes for the combination to be arrived at independently by more than one person. For example, imagine if the universe’s bank of ideas consisted of 100 ideas. A combination of two ideas would yield 10,000 different possible combinations (100² = 10,000). Each additional idea added to the combination adds a power to the exponent attached to the universe's ideas bank. A combination of three ideas would yield 1,000,000 possible combinations (100³ = 1,000,000; 990,000 additional possible combinations compared to the previous combination size). A combination of four ideas would yield 100,000,000 possible combinations (100⁴ = 100,000,000; 99,000,000 additional possible combinations compared to the previous combination size). Each successive additional idea added to the combination adds a rapidly increasingly large amount of possible combinations. Selections within the spectrum of the idea bank that are rare, unusual, stylized, probably purely original, or fanciful further make the work's combination more obscure and the likelihood of making something similar more remote. The higher the number of ideas that are combined and the more original the selections, or the more original the combining of selections, the less likely someone is to stumble over it in a daily-life functional or relatively average pursuit and thus no functional or relatively average pursuit would be precluded. It also becomes increasingly unlikely that one would stumble over it in a non-functional or non-average pursuit without having engaged in stealing from the work. A relatively average pursuit is a creatively driven work that does not quite reach the bar of protection against selection mimicry or one that does not even reach the bar of protection against selection and arrangement mimicry. When thinking about the unusual combining of ideas, there should come a point when adding one more unusually combined idea should begin to allow for the unique combination to be copyright protected without shocking the conscious. First, there should come a point when to not protect it from selection mimicry would shock the conscious. Further down the line of expressiveness (additional selections that make additions to originality), there should come points when to not protect it from various degrees of substantial similarity would shock the conscious. In contrast, selections that go together out of necessity, strong tradition, factual relationship, or function (or resemble those that do) are common, at least somewhat automatic, and nearly expressionless, if not completely expressionless, and to protect such combinations from substantial similarity would preclude others from engaging in similar functional or relatively average pursuits. For compositions entirely composed of such selection, it should take many selections and/or arrangements in order to be able to accumulate enough expression to achieve protection against what appears as mimicry.

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Perils and Pitfalls One of the biggest problems that has plagued many of those who have sought to discern copyright infringement is the use of the subtractive method on creatively driven works. The subtractive method prescribes that one remove from the analysis all ideas, facts, and scènes à faire and then ask whether there is any substantial similarity in what remains. The subtractive method is alluring because one is capable of applying it however they see fit in order to accomplish their objective. Generally, what happens is one will know an infringement when they see it and will then pick and choose what they want to subtract in order to make their case. The problem is that the subtractive method takes away selections and arrangements and what’s left, is not the story told. Every work tells a story. Every creative work can be broken down to individual ideas. It is the selection and arrangement of those ideas that sculpt the story. By subtracting ideas, one could theoretically whittle any creative work down to nothing. A method that involves subtraction is only useful on hybrid works for use in distinguishing that which is protected against substantial similarity (the whole) from that which alone could at most be protected against selection mimicry (an extensive selection of historical accounts, statements of fact, and/or methodology). For some, there is also the allure to try to inject the subjective criteria of quality and/or cleverness into the analysis. Expression is not a measure of quality or cleverness. Things with massive amounts of expression can be virtually devoid of quality and/or cleverness. Nevertheless, some have used perceived quality and cleverness as a basis for rewarding more extensive bounds of protection capable of capturing something as substantially similar that should not have been. To use what one deems as good or clever as the basis for rewarding more extensive bounds of protection would cause one person’s discernment of infringement to be complete folly to a person with differing tastes. Yet another pitfall is the error of thinking that presentation style is the only thing that copyright protects or that it is the main thing that copyright protects. Some examples of presentation style include: a particular sentence structure, painting with all straight dashes, or a certain type of distortion in a song or musical note. A presentation style is one idea from a rather limited idea bank. As such, each presentation style selected only represents a small addition to a work’s overall expression. Presentation styles represent a sub-tier of selection in regards to importance as they are somewhat at the mercy of the size of their bank of distinct ideas. The more default the presentation style selected, the less of an addition to the overall expression it is. If several non-default presentation styles are selected throughout a work, then they can make a strong contribution to protectable expression.

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Determining Whether There has Been a Copyright Infringement in a Creative Work For determining infringement, try to identify the larger theme the two works have in common at the most broad, basic level, and then compare which ideas each work selected to express the larger theme. You do not protect individual ideas or scènes à faire, so if only a small amount of those were similar in relation to the size of the works, then the later work should not be found to have infringed. If many of the selections were similar in relation to the size of the works, then the later work should be found to have infringed, especially if there were many similarities in their unusual or non-automatic combinations, and especially if there were many similarities in their arrangement. The more originality in a work’s selection, the smaller percentage of similar selections need be present in the later work to rule out independent creation. Consider the amount of similarities in relation to the size of each of the works, and give each of those fractions weight toward reaching a determination. Also consider the importance of the similarities (for example, how many important themes are represented amongst them and how many unusual combinations are represented amongst them). It is typically necessary for some of the unusual or non-automatic combinations to be similar between the works in order for there to have been enough expression taken to be a high enough percentage of a fictional work to justify protection from substantial similarity. If any of the earlier work’s more original sub-compositions are very similar, then the later work should be found to have infringed. In every exercise there should be a point when the inclusion of one more of the earlier work’s selections, appearing in the later work, shocks the conscious. This is the point where the reasonable possibility of independent creation is eliminated.

Examples Paint the Picture Take the example of a mentally inspired/selected painting of a common type of tree (as opposed to a painting of a common type of tree from an actual scene in nature) with say 10 short brush-marks. Is it protected at the level of a tree across all mediums? Of course not, as a concept, it’s a single idea. As applied to a painting, the selection of the concept of a tree is also a single subject matter or single theme that will inevitably be made up of several parts. In this case, the tree is the main subject matter or main theme and its main branches are also themes regardless of whether they consist of one brush stroke or several. Is it protected from something substantially similar? No, such a painting is a scène à faire as we have seen paintings of simple trees with about 10 short brush strokes many, many times before, so it’s very unoriginal. With such few selections and arrangements in an unoriginal subject matter there’s little opportunity for much expression. It's a relatively average pursuit. Is it protected from any types of mimicry? Maybe, but the mimicry would have to be pretty exact (content mimicry) and actual access may have to be proven rather than just presumed based on distinct similarity. The most certain way it would be protectable would be from actual duplication. Now take the example of the same type of tree inspired/selected from the imagination and painted with the definition of 1000 fine brush-strokes. Is it protected from something substantially similar? Yes, to a certain extent. Such a painting would contain so much selection and arrangement that it would be full

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of expression. However, the bounds within which something should be considered substantially similar should not be as large as the bounds of a 1000 brush-mark painting of something purely original and fantastical. Nor should the bounds of protection for such a tree be as large as that for a 1000 brushmark painting of a mentally inspired/selected object in nature that is less often depicted in art. Relative to a painting of a mentally inspired/selected tree, a painting of a mentally inspired/selected snow plant will need less detail to achieve protection from that which is substantially similar. The use of original subject matter is itself a very strong expression and thus serves as an amplifier of protection.

Conclusion The purpose of this article has been to illuminate a path to properly discerning copyright infringement. In many instances, an occurrence of copyright infringement will be glaringly obvious and straightforward. In other instances, it may be a “you know it when you see it.” And in other instances still, it may seem less certain at first. However, with the devices and the thorough understanding of expression that this article provides, one should have a formidable toolkit for use in discerning copyright infringement.

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