What Idea/Expression Dichotomy? Microsoft Sued For Having Sorta Similar Commercials

from the oh-come-on dept

Mon, Jul 18th 2011 11:26am — Mike Masnick

Copyright law is supposed to have an idea/expression dichotomy, in which the copyright only covers the specific expression, and not the idea. We're often told this when we worry about the expansion of copyright law being used to block out ideas. And yet, as we've explained in the past, it's not clear there's any real idea/expression dichotomy when it comes to copyright. That's because, if a judge doesn't like something, he or she will often come up with some convoluted explanation for how the "expression" covers the basic idea.

And, of course, once people begin to realize that there's no real idea/expression dichotomy, lawsuits begin to show up pushing the boundaries even further. Take for example, this lawsuit, in which a novelty gift firm called Cellrderm has sued Microsoft and its ad agency, CP&B, for "copying" some of its commercials. You can see the four commercial below, showing the (terribly produced) Cellrderm commercials, followed by the supposedly "infringing" Microsoft version: Cellerdrm, Bedroom ad:

Microsoft, Bedroom ad:

Cellerdrm, Urinal ad:

Microsoft, Urinal ad:
If you watch the ads, they may have (sorta, kinda) similar ideas, but the expression is way, way different in both cases. And yet... Cellrderm is trying to claim that it actually copies the expression:

The Microsoft Commercials copy both the sequence of events and the character interplay found in the Cellrderm Commercials.... The Microsoft Commercials also copy other copyrightable expression, including but not limited to clothing, gestures, character appearance, camera angles, and other visual elements from the Cellrderm Commercials.

Yes, you read that right. They're complaining that the clothing and gestures in these commercials was copyrightable. One hopes that a judge will tell Cellrderm to stick to gag gifts, and get out of the gag lawsuit business.

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Filed Under: commercials, copyright, expression, idea
Companies: cellrderm, microsoft

30 Comments

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Thanatos, 18 Jul 2011 @ 11:33am

Don't care. Microsoft sues people right and left over BS on a daily basis - Not because they have actually been slighted, but because they are playing 3 year old at someone having a better product than them. Hope everyone sues them for complete BS reasons - show them what it's like!
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- DannyB (profile), 18 Jul 2011 @ 11:43am
  
  Re:
  Just because Microsoft frequently sues everyone over BS, as you say, does not mean that we should not care about this bogus suit because it is currently target at a company that is disliked.
  
  The troll Cellrderm could also sue other parties that are favored. Then would it all of a sudden change from "Don't care" to "Do care"?
  
  What if Cellrderm sues Apple. Oh, wait. Don't care. Better example. What if Cellrderm sues Google?
  
  Google: Partner with everyone, sue no one.
  Apple: Partner with no one, sue everyone.
  
  Microsoft: Backstab partners, sue everyone else.
  
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Anonymous Coward, 18 Jul 2011 @ 11:44am

I think the suit is pretty weak, but a bad lawsuit doesn't really support the claim that there is not "real" idea/expression dichotomy.

Moreover, identifying the clothing and gestures as things that have allegedly been copied doesn't mean they are claiming copyright in the clothing or gestures independently.
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- MrWilson, 18 Jul 2011 @ 12:26pm
  
  Re:
  From the lawsuit, emphasis mine:
  
  "The Microsoft Commercials also copy other copyrightable expression, including but not limited to clothing, gestures..."
  
  They are claiming that the clothing and the gestures are copyrightable. For there to be any standing to sue, they have to claim some form of ownership. They can't patent the clothing and gestures. I doubt they have a trademark on them. Copyright, especially since they specially assert that such things are copyrightable, seems to be what they're asserting.
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  - Anonymous Coward, 18 Jul 2011 @ 12:52pm
    
    Re: Re:
    Ok, but they might or might not be claiming that, for example, the gestures themselves, independent of anything else, are protectable by copyright or that they own the copyright in such gestures.
    
    Rather, they might be saying that the "other copyrightable expression" refers to the particular combination of clothing, gestures, etc. put together in their video amounts to protectable expresssion.
    
    That is a much more supportable viewpoint than saying a particular gesture is protected by copyright, and I think it makes more sense to read that language in that manner (i.e., putting forth a relatively noncontroversial argument) rather than reading it in a manner that suggests a rather extreme and hard-to-support argument (i.e., every particular individual gesture in the video is protected by copyright).
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    - Dark Helmet (profile), 18 Jul 2011 @ 1:03pm
      
      Re: Re: Re:
      "That is a much more supportable viewpoint than saying a particular gesture is protected by copyright, and I think it makes more sense to read that language in that manner"
      
      Actually, I agree w/you on that one. They're likely saying that this combination of ideas together is copyrightable expression.
      
      But I still think that's wrong. Whether we're talking about a general idea or a specific idea, we're still talking about the idea. It's pretty clear that Microsoft, as annoying as I find them, did NOT copy the specific expression, which is all that's copyrightable.
      
      This is less akin to me photoshopping a Harry Potter novel and more similar to Edward Scissorshands and Frankenstein. Similar idea, different expression....
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      - Anonymous Coward, 18 Jul 2011 @ 1:31pm
        
        Re: Re: Re: Re:
        Under U.S. copyright law, the particular manner in which unprotectable elements are put together may be considered protectable expression.
        
        I mean, that's all any textual work is, after all, a combination of unprotectable letters into an original expression.
        
        Also, in terms of copyright a "specific idea" might actually be "expression." The difference between "idea" and "expression" is not really one of kind, but of degree of abstraction. General/vaque = idea and specific/concrete = expression, and drawing the line in the middle ground is hard.
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        Dark Helmet (profile), 18 Jul 2011 @ 1:40pm
        
        Re: Re: Re: Re: Re:
        Yes, you're absolutely right, except that the distinctions you're bringing up are hardly a matter of codified caselaw. More importantly, they've mostly been relegated to questions of fictional characters and/or setting being copyrightable. What Cellrderm is attempting here is very different in that they're trying to state that generic ideas combined to make a generic character can be copyrightable. That isn't what those distinctions you were bringing up were for.
        
        It MIGHT be a bit different if these characters in the commercials were more fully fleshed out into some kind of identifiable expression. But you can't combine clothing, gestures, and/or motivations without being REALLY specific and expect to have something copyrightable. As an example:
        
        You have a young man who dresses in a green ranger's outfit and a green pointy cap, shoots a bow and arrow while also having a dagger, and collects money from bad guys all in an effort to help a young maiden. Who is he?
        
        Robin Hood?
        
        Link from the Zelda series?
        
        Both characters are copyrightable (probably, although Robin Hood I believe is in the public domain by now as a character), but the above description is not, even though it combines all the things these commercials do....
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        Anonymous Coward, 18 Jul 2011 @ 3:02pm
        
        Re: Re: Re: Re: Re: Re:
        I'm not quite sure what you're getting at w/r/t "cofified caselaw." Something in a "code" is different than something in caselaw.
        
        Anyway, there is plenty of case law that weighs in on this issue and it is not limited to fictional characters or setting.
        
        I'm not sure why you're focusing on "character" here.
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      - Alien Bard, 18 Jul 2011 @ 11:52pm
        
        Re: Re: Re: Re:
        Indeed, if the Frankenstein movie was just a few years newer and/or owned by Disney I'm sure there would have been a lawsuit.
        
        Perhaps even more disturbing, if legal changes proceed according to the mafiaa's plans, the CEO's of Microsoft could find themselves slammed into a prison cell for stuff like this. Not that I have a lot of sympathy for them, but still...
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John D (profile), 18 Jul 2011 @ 11:52am

Perhaps he was ignoring her not for the (QWERTY dumbphone) that he is ruthlessly texting on, but perhaps A) that awful music has left him in a state of confusion B) he's texting his wife or C) she talks like a mute. Either way, Microsoft's ad is way better.
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- Dark Helmet (profile), 18 Jul 2011 @ 12:01pm
  
  Re:
  "Either way, Microsoft's ad is way better."
  
  I'd agree, save for the gratuitous use of the fabled "side-boob" in the first ad. That alone puts it over the top....
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  - Anonymous Coward, 18 Jul 2011 @ 12:05pm
    
    Re: Re:
    I think labelling that "side boob" is being generous (or conservative, depending on your point of view).
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Anonymous Coward, 18 Jul 2011 @ 12:23pm

Here we can see the COMMUNIST Mike HUSSEIN Masnick supporting the great satan known as Microsoft.

Mike, why do you hate rainbows, puppies, and the smiles of children. While loving both hitler and satan?
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- egghead (profile), 18 Jul 2011 @ 1:06pm
  
  Re:
  I'm not Mike, but I'll answer all the same.
  "...why do you hate rainbows, puppies, and the smiles of children. While loving both hitler and satan?"
  I hate rainbows because they only reveal an extremely small section of the electromagnetic spectrum. So what if that section is the only one visible to the naked eye? That, and it means the rain is gone; if you've been in Texas during the summer dry-spells, then you'd understand.
  I hate puppies simply because they garner the adoration of countless beautiful women that have shown the least bit of interest in me; adorable as I may be.
  I hate the smiles of children, only when they are about to do something that they are fully aware to be against my wishes.
  I love both Hitler and Satan simply because I have always been taught to love everyone. That doesn't mean I have to like what they do. Judge the actions, not the person; for only God can know the person's heart and judge fairly.
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out_of_the_blue, 18 Jul 2011 @ 12:55pm

Microsoft wouldn't have any ideas if they didn't steal them.
So this is typical.
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- Anonymous Coward, 18 Jul 2011 @ 2:10pm
  
  Re: Microsoft wouldn't have any ideas if they didn't steal them.
  You're an idiot.
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Matt Williams (profile), 18 Jul 2011 @ 2:10pm

camera angles
"camera angles"

I'd be worried if they were getting too creative with the camera angles on the urinal ad.
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DandonTRJ (profile), 18 Jul 2011 @ 2:32pm

This is where copyright law is super muddled. Some case law says that when you look for infringement, you have to subtract all the elements of the works that are individually unprotectable, then compare only the elements that are left. Other cases say that even where individual elements are not copyrightable, a particular concrete pattern that they form can be copyrightable. This is the "selection and arrangement" test, colloquially. It goes back many decades and was used by the Supreme Court in the Feist case to explain what is protectable about factual compilations. Ever since then, law firms have tried to shape the contours of selection and arrangement to fit cases where arguably there are only lots of ideas being copied. It rarely works, though. Most of these cases are tossed out. But damned if plaintiffs don't keep trying anyway.
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- Anonymous Coward, 18 Jul 2011 @ 3:04pm
  
  Re:
  Even the case law that says you subtract unprotectable elements is pretty clear that selection/coordination/arrangment can be protectable.
  
  I mean, the Supreme Court said so, and hasn't recanted, so it's not really up for debate.
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  - DandonTRJ (profile), 18 Jul 2011 @ 4:19pm
    
    Re: Re:
    In my experience, it's actually been more convoluted than that. For example, the Ninth Circuit used Metcalf v. Bochco in 2002 to try to harmonize the two types of cases [ones that filter versus ones that don't] by saying filtration cases [like Cavalier v. Random House] did not address the protectability of the selection and sequence of generic elements, only random similarities scattered throughout the works. But even when plaintiffs allege a concrete pattern of similarities (like in 2006's Funky Films v. Time Warner), the courts can always choose to play fact-finder and distinguish the works themselves instead of letting it go to trial. They've also started playing this weird game where they don't apply the selection and arrangement test unless the facts are analogous to Metcalf's [high level of similarity plus admitted access], which has no basis in Feist or any other prior case law I've found. The new jurisprudence often seems to fly in the face of old copyright principles, but without having the balls to actually overrule said principles. That's why I don't blame some plaintiffs for bringing duds to court -- the case law can really mislead them at times.
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    - Anonymous Coward, 18 Jul 2011 @ 5:03pm
      
      Re: Re: Re:
      I hate Ninth Circuit copyright case law. There are so many cases and so many judges/panels, that it's hard to get any kind of uniformity.
      
      At least they finally moved (or at least some panels have moved) the "extrinsic/intrinsic" test over to more closely comport with the abstraction/filtration/comparison type tests used by 2d. cir., 10th cir. and others.
      
      Only Eigth Circuit is worse in general, since they adopted the extrinsic/intrinsic test from the Ninth Circuit but have yet (last time I checked) to contradict the notion that similarity of ideas should be evaluated for infringement purposes.
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      - DandonTRJ (profile), 18 Jul 2011 @ 11:56pm
        
        Re: Re: Re: Re:
        Hah, I didn't know the Eighth was so far behind. The Second Circuit definitely has the Ninth beat when it comes to clear methodology, though. One of my professors actually asked Kozinski if the Ninth would ever be willing to admit they've butchered infringement analyses beyond repair and just nick the Second's system instead. The response didn't seem to be a receptive one. Meanwhile, the firm I work at is basically abandoning its copyright litigation practice in California due to the fact that it's simply impossible to discern what a successful claim looks like anymore.
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        Anonymous Coward, 19 Jul 2011 @ 9:39am
        
        Re: Re: Re: Re: Re:
        Yeah, I haven't looked in depth at the Eighth Circuit too recently, but when I looked last, they were still describing the extrinsic test as looking for "similarity of ideas" rather than just an "objective" analysis.
        
        I mean, they have some explicit cases saying ideas are not protectable and stuff and applying merger, but it always blew my mind that a court would be willing to start off a copyright analysis explicitly stating that they are looking at similarity of stuff that's not protectable (even if that's not quite what they are actually doing in some cases).
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PRMan, 18 Jul 2011 @ 2:53pm

They're not the same...
They're not the same at all. Microsoft's commercials have an editor.
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Chris Maresca (profile), 18 Jul 2011 @ 4:44pm

I think they got what they wanted....
e.g. publicity.

Everyone on this thread looked at the ads, and we are all talking about it.

I would say it's a huge success....
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JS, 18 Jul 2011 @ 6:09pm

Microsoft gets its point across in under 20 seconds. Cellrderm takes over a minute to get anywhere near the point.
I think they're just jealous that Microsoft's commercials are actually more coherent.
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- Mirradric, 18 Jul 2011 @ 9:22pm
  
  On the ads themselves
  Is cellrderm actually selling a real product? It looks to me that it's more of a satire/parody.
  
  And what is the microsoft ad saying? Was my understanding that microsoft phones suck so bad that you wouldn't want to spend more time using them than absolutely necessary correct?
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Enderzu (profile), 19 Jul 2011 @ 6:10am

improvement of expressions
So, you can sue over certain expressions of ideas. OK. Well, if that's the case, then the expressions in the Cellrderm ads were completely and utterly improved by Microsoft to the point that they are new expressions. In fact, I was confused -- at first glance, I thought the Cellrderm ads were very obviously spoofs of the Microsoft ads. Ha! So the question is, who is the judge of when the initial expression stops being copied and is simply the inspiration for a new (and improved) expression of an idea? Time for some fuzzy logic.
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KRS, 20 Jul 2011 @ 2:25am

Good claim
Absolutely no question in each case MicroCrap copied the other guys. What's new? They ripped off Apple repeatedly. They ripped off other companies too.

Hope they lose.
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