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Copyright of Idea and Expression Dichotomy in Films and Television

Info: 4695 words (19 pages) Law Essay
Published: 3rd Nov 2020

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This paper analyzes the enhancements rising up out of the express language of the 1976 Copyright Act concerning copyright obtaining and how these progressions have affected TV bunch settlement cases. A creating number of courts are finding procurement of state law affirms in thought convenience cases .The maker's tension is that as courts can't see plan settlement ensures, the good men's simultaneousness on which the business works, insecure for what it's worth, is most likely going to isolate. The broadcaster who searches out and copies the best of what inventive producers make will have a high ground by not placing assets into making or getting positions or remunerating the people who do. If the business and the courts persevere through this preparation, contenders must seek after a comparable method or end up at a forceful deterrent. Over the long haul there is negligible inspiration to place assets into inventive considerations and all programming becomes co modified, diminishing the estimation of the entire resource pool and reducing any catalyst for headway.


Thought explanation dichotomy is one of the most discussed standards in the space of copyright law. The courts on various events have continued clutching it as a main idea under copyright law. The idea-expression dichotomy poses a large issue in distinguishing them from each other. The nonappearance of a statutory arrangement requires dependence on a few case laws that endeavor at chalking out a reasonable differentiation between the two.

  1.  Traditionally, the courts have would not build up a restriction definition for the term thought. In layman terms, an idea is an arrangement of thought which maybe on a particular subject or point. Enunciation on the other hand, involves utilization the said idea. An idea can be conveyed from various perspectives and this is the spot the copyright issue shows. Copyright verifies the explanation and not just the idea.
  1.  If a comparative idea can be imparted in different habits, different copyrights may exist together and no infringement will result.
  1.  Statements of Justice Brennan, "[t]his separation between guaranteed verbalizations and unprotected considerations is at the epitome of copyright."
  1.  It is moreover noticeable how idea may have certain enunciations without which those explanation would stop to exist. Mostly courts consider them not copyrightable, as to copyright them in like manner would means the idea is copyrightable.
  1. Such a merger is called –“ scenes a faire”. For extra appreciation of the thought, we will look at the idea verbalization dichotomy in setting of the laws in the US, UK and India.

History and Purpose

The idea-expression dichotomy, point by point ensured that an idea (expression) is verified rather than the idea itself. The statute has been comprehensively appeared in the United States and isn't commonly abnormal to Indian resolution. Courts have on and on opined that ideas all things considered are not copyrightable; simply the expression of an idea can be. An idea is the itemizing of thought on a particular subject while an expression includes the execution of the said idea. While various individuals may independently land at a comparative idea, they can ensure copyright similarly as an expression to this idea. Such expression must be a specific, explicit game-plan, plans or various structures. Hence, such a show mulls over a couple of expressions to be available for a comparable idea.

The timeliest case as for the idea-expression dichotomy is the U.S. Unique Court decision of Baker v. Selden, 1 which concerned the copyright over a record book. Selden had made a book that depicted an improved course of action of bookkeeping by process of segments and headings which made the record book less difficult to examine. Baked good master brought out a result likewise , yet using substitute techniques for game-plan of segments and headings.The U.S. Exceptional Court made an indisputable delineation between an idea and its expression, the basic clarification would realize giving a degree of limiting framework to the copyright holder and would signify adversary of forceful practice.[1]


As once held by Judge Learned Hand in Nichols v. Across the board Pictures Corp. 2 particularly concerning substance and plays: "Upon any work, and especially upon a play, a remarkable number of instances of growing clearing explanation will fit likewise well, as progressively a greater amount of the event is overlooked. The last may possibly be near the most wide decree of what the play is about, and once in a while may involve just of its title; anyway there is a point in this course of action of reflections where they are rarely again guaranteed, since for the most part the essayist could maintain a strategic distance from the usage of his "ideas," to which, beside their expression, his property is once in a while extended." 3 With the commencement of this instructing, journalists and distributers were asked to make more works, in like manner energizing and verifying innovativeness.

Merger Doctrine As the above case appears, while the dichotomy can be grasped in sober minds, one may in like manner analyze a scenario where such a serious separation can't be made. On explicit occasions, there may basically be one way to deal with express an idea. In such cases, as indicated by this show of merger, the idea and its expression are said to be 'united' and the work can't be copyrightable. In such events of merger, the expression is never again copyrightable in light of the fact that yielding copyright over the expression will sufficiently counsel the owner with an overwhelming plan of action over the idea itself, which was the recognized objective of making the idea-expression dichotomy regardless. For example, a count to incorporate two numbers or print a number on the screen can be [3] conveyed in only a solitary way. Yielding copyright over` will empower such right-owner to keep someone from 'reproducing' 4 or even interpret 5 into another form of expression, in order to perform certain functions. Grant of such a  forcing plan of action will be against open incredible and subsequently the law doesn't permit copyright in circumstances where the instructing of such a merger is applied.


An extraordinarily regarded TV producer makes a course of action format.1 He helps out a studio for financing, lines up some gigantic name capacity, and starts shopping the plan to broadcasters. His pitch is gotten with energy and he goes into courses of action with one supporter. Authorities at various frameworks, not wanting to miss the opportunity for a potential evaluations victor, moreover welcome courses of action. By and by, the gathering hits a creation oversee one of the frameworks. A losing bidder, having fail to confirm the endeavor, calls another producer who has presented an idea in a comparative grouping and prescribes that they participate to 'make something' here. The losing bidder torques up the age methodology and dispatches its variation of the program first. What result? In March 2005, NBC began airing "The Contender," an unscripted TV show realized by Mark Burnett, of "Survivor" qualification. When NBC won the understanding for the show, Fox, who had been another captivated framework, developed a thought with another creator, Endemol, for a generally equivalent to program entitled, "The Next Great Champ," and announced an early dispatch. Regardless of the way that NBC, DreamWorks (Burnett's studio assistant) and Burnett were stunned by Fox's behavior,2 the primary legitimate action began by DreamWorks and Burnett (NBC didn't join as an outraged gathering) was a case for an order reliant on encroachment of California Athletic Commission regulations.3 The court denied the development for a constraining solicitation and the movement was dismissed.4 NBC picked to push back its dispatch date to reduce the potential debilitating of group share that would decidedly result from the simultaneous dispatch of two unclearly structured shows. As routinely happens in TV bunch questions, another creator, Leigh Ann Burton, in like manner ensured inception of the thought driving Endemol's "The Next Great Champ."5 She had as of late pitched a boxing unscripted TV dramatization thought to Oscar de la Hoya's Golden Boy Productions, the association that cooperated with Endemol to pass on the Fox series.6 In protecting itself in the press, Fox communicated that they had gotten five recommendation from producers for practically identical musings, including Endemol and Burnett.7 The model is an ordinary one. It is seen routinely in the communicate business. A writer or creator delivers a thought for a course of action and pitches the exhibit association to broadcasters and dealers. By and by, a similar idea is embodied in another course of action without the acquirer having contracted him to make the game plan, or compensated him for the idea.The chief difference between a craving that the recipient will pay for the thought if it is used, and the longing that the recipient will disregard using an idea with the exception of if a comprehension is come to is a fundamental capability in TV structure convenience cases. The law may guarantee the longing to be paid, anyway not the craving for particular authority over the idea.

Idea- Expression Dichotomy In TV And Films

The TV and film organizations make due with the total effort of inventive scholars, the two columnists and producers, to pitch their musings for the accompanying breakout hit. The maker needs to evaluate the arrangement to get the endeavor off the ground, while studio and framework executives depend in the wake of hearing each pitch that is out there so as not to disregard that next hit, for their jobs depend upon it. Disregarding the manner in which that a design may not be particularly novel in a general sense, the idea may even now have a motivation to the recipient. For instance, the value may be "not expending resources looking for after the idea through various stations or by having an advantage making thought realized sooner rather than later." There is insignificant inspiration for a broadcaster to contract for TV structures if the considerations behind those associations are available to no detriment. Dealings for the rights to TV bunch continue on acc[4]ount of business relationships, anyway when trades slow down, there is no inspiration for the broadcaster to avoid developing an undefined program with another producer. In case contemplations have no money related worth only, and using others' musings has no genuine results, the 'men of respects understanding' not to get the benefit of a pitch without the incorporation of the maker is rarely again feasible. In addition, as this industry custom breaks up, the acceptance of industry custom is crumbled as well. Court decisions reflect this shift, finding it logically difficult to find that a proposed as a general rule contract exists.

Idea-Expression Dichotomy In The UK Jurisdiction

Copyright law isn't stressed over the augmentation of ideas, anyway with the age of the structure where ideas are conveyed. 6 Prior to 1911,courts in the UK got the standard that an idea isn't obligated to copyright security but expression enjoys that protection.7 While dealing with the subject of copying, the rule was that there was no copyright in minor ideas, ideas, plans, structures.8 The degree of copyright, therefore, confined to the affirmation of one kind of expression. If such repeating continued on, the copyright was said to be infringed.9If the idea of the irritated party was grasped and used by the respondent, he would not be committed, paying little respect to howsoever one of a kind the idea of the annoyed party may be. After 1911, the courts have declared that ideas, thoughts and plans existing in a man's cerebrum are not 'works' anyway once reduced into forming or other material, such ideas through their material structure, may be helpless against copyright security. 10 A general idea shrouded the copyright isn't needy upon security. Ideas are as free as normal nature of which everyone has the benefit to unwind. The position is that if the idea encompassed in the insulted party's work is sufficiently novel, the irrelevant taking of the idea won't cause copyright infringement. Regardless, if the idea is turned out in some detail by the insulted party and as such the respondent rehashes the expression of that idea, by then it may be an infringement.11In such a case, it isn't the idea yet its bare essential expression which is said to have been copied.

Idea-Expression Dichotomy In Indian Jurisdiction

The law dealing with copyrights in India has been altogether overseen under the Copyrights Act, 1957. The Act, howsoever exhaustive may show up, describes neither an idea nor expression and is also peaceful on the differentiation in their respective treatment. From the lawful point also, there has not been a great deal of headway in the standard of idea-expression dichotomy in light of deficiency of case laws. In R.G. Anand v. Select Films,11 the issue of such a dichotomy went before the Supreme Court. For this circumstance, the annoyed party, who was low support writer and creator of stage plays declared that the defendant, who was a motion picture maker[5] had duplicated impressive fragments from his play and had transformed it into a film. The insulted party avowed an encroachment of his copyright. The respondent battled that the subject was essential to both the play and it was not outraged gathering's interesting idea. In picking the issue, the Supreme Court on warily investigating, considering and explaining various authorities and case laws, propelled the going with proposals. There can be no copyright in an idea, point, subjects, plots or recorded or mind blowing convictions and encroachment of the copyright in such cases is restricted to the structure. Where a comparable idea is being made in another manner, it is show that the source being ordinary similarities will without a doubt occur. In such a situation the courts should choose if the comparable qualities are on fundamental or noteworthy pieces of the strategy for expression grasped in the copyrighted work. If the respondent's work is just an exacting imperative of the copyrighted work with specific assortments, as it were, it would signify encroachment of the copyright. One of the most secure test to choose if there has been an encroachment of copyright is to check whether the peruser, spectator or the watcher in the wake of having examined or seen both the works is doubtlessly of the evaluation and gets an undeniable impression that the subsequent work radiates an impression of being a copy of the first. Where the subject is equal yet is shown and treated particularly with the objective that the subsequent work transforms into an absolutely new work, no request of encroachment of copyright rises. As an encroachment of copyright means a show of burglary it must be exhibited by clear and appropriate confirmation resulting to applying the various tests set some place around the case laws.Where in any case the request is of the encroachment of the copyright of stage play by a motion picture creator or a Director the task of the irritated party ends up being progressively difficult to show robbery. It is show that not at all like a stage play a film has a much increasingly broad inescapable, a progressively broad field and a more prominent establishment where the respondents can by introducing a combination of scenes give a concealing and appearance extraordinary in connection to the manner by which the copyrighted work has conveyed the idea. While taking a gander at the play and the film, the Court landed at the goals that anyway the subject of provincialism may have been the identical, the presentation and treatment of the last work was phenomenal and anyway there were some glaring comparable qualities in the two works, there were also material and wide dissimilarities which ruined the intend to copy the first. As needs be there was no infringement of a copyright for this circumstance. This seven-point preliminary of R.G. Anand casewas applied by Kerala High Court in R. Madhavan v. S.K. Nair. 16The court found that the resemblance or comparability in the subject, scenes and conditions of the film and the novel was obviously insufficient. The material scenes, conditions and scenes delineated on the film were fundamentally and generously not equivalent to those in the affronted party's novel. The insulted party had thought of a reality arrange making TV program and pushed toward the respondent as for the telecom the for all intents and purposes indistinguishable. The bothered party battled that the respondent had toppled his idea and executed it and checked for infringement advancement against encroachment of his copyright. The respondent said that it was only the announcement of the idea and not just the idea which could be affirmed under the copyright. The Court agreed that an idea in a general sense can't be checked by a copyright what's more assumed that where that has been the subject of the test is a sharp idea, by then it will when all is said in done be copyrighted notwithstanding how it is just an idea. In Barbara Taylor Bradford v. Sahara Media Entertainment Ltd. 18 the Calcutta High Court attempting to explain the idea verbalization division, raised that the law guaranteed ingenuity of explanation and not inventiveness of the central idea in view of the changing of two conflicting techniques. The fundamental course of action was that the law must guarantee creativity of work, thusly empowering the makers to verify their compensation for so a great deal of inconvenient work and keeping degenerate privateers from regarding those customary things. The resulting technique was that the security must not become over-confirmation at last obliging future imagination. In the predictable events, judgment considering was added another estimation to idea-expression extremity when in 2008, the Supreme Court thought of the choice of Eastern Book Company and Ors. v. D.B. Modak. 19 The court held that the Copyright Act doesn't stress with the improvement of considerations, yet with the announcement of thought. On the issue of whether copy changed choices were set up for copyright certification, it was expected that the choices of a Court are in the open space and henceforth no copyright can be communicated on the equal.

The Indian Copyright Act, by restraint of Section 13, grants protection to the going with works:

1. Extraordinary academic, hair-raising, melodic and tasteful works.

2. Cinematographic films.

3. Sound narrative

Cases:How Might One Perceive An Idea And An Expression?

The idea-expression division speaks to a huge test in perceiving them. The nonappearance of a statutory provision requires dependence on several case laws that endeavor at chalking out an indisputable separation between the two.

A huge case in such way is that of RG Anand v. Deluxe Films. The annoyed party was the maker of a play called Hum Hindustani. In 1954, the respondent Mohan Sehgal sent a letter to the party conveying his craving to make a movie reliant on the same. The annoyed party and the disputant met and discussed the entire play. The respondent didn't submit anything, however the outraged party later came to understand that the prosecutor discharged a movie titled New Delhi. In the wake of viewing the movie, the insulted party was of the evaluation that it relies upon the narrative of his play. So he recorded a suit against the respondent for unending directive and damages. Both the District Court and the High Court to the Supreme Court of India.

The Supreme Court held that the movie can't be viewed as an infringement of the substance of the play. It gave on the grounds that that however the idea behind both the records was the equivalent, the way both had been conveyed were vastly one of a kind in connection to each other. As such it can't be held to be copyright infringement.

Even more starting late, because of MansoobHaider v. Yashraj Films, the Bombay High Court accentuated in transit that ideas were not copyrightable. The development left in the wake of filtering through dissimilarities is the idea which isn't copyrightable and closeness of ideas doesn't fast copyright infringement.

A critical case in such way is that of Morrisey v. Agent and Gamble Co. This case fundamentally dealt with a test/challenge and whether its rules are a subject for copyright. The court held that the idea of the test is merged with the rules. Copyrighting the standards would mean copyrighting the idea of the test and thusly the norms are not a point of copyright.

Starting late as 2002, the idea/enunciation division issue was tended to by the Delhi Court in Anil Gupta v, KunalDasgupta,wherein the assaulted party had envisioned a reality matchmaking TV program and progressed toward the defendant with respect to the telecom of a comparable program. It was communicated by the exasperated party that the respondent had usurped his idea and executed and ensured a break of his copyright. The respondent fought that it was only the announcement of the idea and not just the idea which could be checked under the copyright. The Court while agreeing that an idea in a general sense can't be guaranteed by a copyright also deduced that where that has been the subject of the test is a unique idea, by then it will when all is said in done be copyrighted even in any case it is just an idea. The technique for derivation for this decision lies as the conflict which was advanced by the Court that the idea made and progressed by the insulted party is the delayed consequence of the work done by the assaulted party upon material which may be open for the utilization of anybody yet what makes it private is where that the disturbed party has thought carefully and thus passed on a result resembling an idea and if respondent is allowed to show their very have unscripted TV sensation reliant on the idea from the beginning achieved by the stunned party, it will empower the defendant to use that idea and to check the outcome of made by the troubled party.


There has been impressive trouble in characterizing and applying the thought articulation dichotomy when all is said in done. Most analysts who have raised various sorts of issues with the thought articulation dichotomy have recognized that a thought can't exist separated from some articulation. With the end goal of copyright ability, discussing an idealess articulation has neither rhyme nor reason, regardless of whatever perhaps the idea of work being copyrighted. It has been near a long time since the film star AbhishekBachchan began supporting 'Thought' telecom administrations with a motto "WHAT AN IDEA SIR JI". Be that as it may, with regards to copyright, it would not be right to state "WHAT AN EXPRESSION SIR JI". Presently going to the materialness of the principle in Indian purview, the exchange in the past part makes it completely clear that thought articulation dichotomy in India is still at its beginning stage and from R.G. Anand to each resulting administering which pursued; the courts alluded to legal choices of United States and United Kingdom. Obviously, that the courts endeavored true endeavors to bring the previously mentioned tenet into picture and somewhat, even prevailing with regards to making it a fundamental component of Copyright law in India. In any case, the development and acknowledgment of thought articulation dichotomy couldn't generally take off because of the disappointment of Indian courts in valuing the differentiation among American and English laws prompting vulnerabilities, errors and irregularities. Passing by the choices of R.G. Anand and Anil Gupta cases, it tends to be construed that it is the English law which finds a more prominent application in India contrasted with the American law. Be that as it may, keeping in see the exactness by which the American courts have outlined thoughts from articulations, and in the long run qualified copyright security for the last mentioned, and the way that the standard discovers express notice in the US Copyright Act of 1976, the utilization of American law can't be thrown away. It is significant for the courts, especially the Supreme Court, to think about and dissect the advantages and disadvantages of both the laws and infer or embrace a center way which would lay some place in the middle of the American and English ways of thinking. Along these lines the Indian courts will have the option to deflect the limits of the methodologies executed by USA and UK.However, the question that arises here is, by granting copyright, what exactly is being protected?


Primary sources – Cases

  • R.G. Anand v. Deluxe Films
  • MansoobHaider v. Yashraj
  • Morrisey v. Agent and Gamble Co

Secondary Source – Books and Websites

  • Christelle Ann Wood, The Idea/expression Dichotomy in Copyright Law as Related to Fictional Characters, University of Johannesburg, 2014
  • Oren Gertner,The Idea-expression Dichotomy: Proposal for a New Analysis The Idea-expression Dichotomy: Proposal for a New Analysis, Oren Gertner, Harvard Law School, 2004
  • Jon Ormond Newman, Benjamin N. Cardozo School of Law. Intellectual Property Law Program, New lyrics for an old melody: the idea/expression dichotomy in the computer age .Issue 4 of Occasional papers in intellectual property from Benjamin N. Cardozo School of Law, Yeshiva University, Benjamin N. Cardozo School of Law, Yeshiva University, 1999


  • (Law.uh.edu, 2020) accessed 6 January 2020
  • (Ir.lawnet.fordham.edu, 2020) accessed 6 January 2020
  • 'Media Law, Ethics, And Policy In The Digital Age' (Google Books, 2020) accessed 6 January 2020
  • (Lakshmisri.com, 2020) accessed 6 January 2020
  • 'A First Amendment Perspective On The Idea/Expression Dichotomy And Copyright In A Work's Total Concept And Feel 38 Emory Law Journal 1989' (Heinonline.org, 2020) accessed 6 January 2020

[1] 101 U.S. 99 (1879)

2 See Nichols v. Universal Pictures Corp., 45 F.2d 119

3 Id.

4 Section 14(a)(i), Copyright Act, 1957

5 Section 14(a)(v), Copyright Act, 1957

6 W.R. Cornish, Intellectual Property: Patent, Copyright, Trademark and Allied Rights 28 (Universal Law Publishing Co. Pvt. Ltd, New Delhi, 3rd edition, 2001)

7 Supra note 3 at 132.

8Johnstone Safety Ltd. v. Peter Cook (Int.) (1990) F.S.R. 161; Harman Pictures N.V. v. Osborne (1967) 1 W.L.R. 723 at 728; Hollinrake v. Truswell (1894) 3 Ch. 420; McCrum v. Eisner (1917) 87 L.J. Ch. 99

9 Id. at 26, Hollinrake v. Trustwell

10 Ibid

11  AIR 1978 SC 1613 

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