Idea/Expression Dichotomy Is Dead; Judge Allows Photographer's Lawsuit Against Rihanna To Move Forward
from the general-frantic-mood dept
Well, this is unfortunate. Back in February, we wrote about what seems like a positively ridiculous lawsuit from photographer David LaChapelle, against the singer Rihanna for her video S&M. LaChapelle claims that scenes in the video infringe on certain photographs he's taken. You can see some of the comparisons here:For instance, the court pointed out that the video's "Pink Room Scene" and LaChapelle's "Striped Face" photograph both feature women dominating men in a domestic scene. That subject is not protectable, the court noted, because "the subjects flow naturally from the chosen idea" of sadomasochism.General frantic mood? General frantic mood?!? How is that a fixed expression? And it's not that not all the details were identical. It's that the details are extremely different.
But the particular way that Rihanna's video portrayed the scenes--including the set, wardrobe, "generally frantic mood" and lighting--was "substantially similar" to LaChapelle images, even if all the details were not identical, the court concluded.
"Both works share the frantic and surreal mood of women dominating men in a hypersaturated, claustrophobic domestic space. Thus, I find that an ordinary observer may well overlook any differences and regard the aesthetic appeal of “Striped Face” and the “Pink Room Scene” as the same," Judge Shira A. Scheindlin wrote in her decision.
The judge is apparently also not a fan of fair use:
The judge dismissed Rihanna's fair use defense out of hand, saying it was so misguided and "unavailing" that the pop singer failed to raise a fair use defense at all.I'm not sure that sentence makes any sense. At the beginning it says the judge dismissed her defense, but at the end of the sentence it says she failed to raise the defense. But, still, it seems like you could make a really strong fair use case here, if you actually believe that there is protectable expression being copied (which I still don't). The purpose seems totally transformative. The amount used seems tiny. And the impact on the market for the photographs seems like it's only likely to be positive, not negative. How wouldn't there be fair use here?
Of course, this is good news for the other photographer making very similar claims against Rihanna, as well as plenty of other photographers who think someone somewhere has done something marginally similar to their work.
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Filed Under: copyright, david lachappelle, fair use, photographs, rihanna, video
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I've read Folsom v Marsh. And I am swayed by the views of the late L. Ray Patterson.
Storey's opinion in Folsom was not quite as bad as Taney's opinion in Scott v Sandford.
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Photographers
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they want some.
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Because they know that the major part of their "art" is an idea. Often, outside of an idea, the rest is happenstance.
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wow are there any judges who aren't brainwashed...
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Re: wow are there any judges who aren't brainwashed...
(Former) Federal Judge G. Thomas Porteus:
(Quoted material is from Judical Conference of the United States Determination.)
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The combination of pieces seems to be a real issue.
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That's fucking hilarious.
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Not sure what's so crazy about that....
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I don't think this case has much merit, but simply looking at each piece in lieu of the whole doesn't seem to be an accurate way of judging infringement.
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I have the copyright on 3 individual sentences. You come up with 3 somewhat similar sentences, which individually do not infringe. The question would be, how do those three somewhat similar sentences suddenly become infringing when they are used in a book or poem?
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He's looking at it correctly, both in terms of logic (IMO) and the law.
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I should have originally stated "In your example," not "in the example,".
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I have no idea what that means.
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That coward used a book and words, but those two things don't relate to a video and a picture. Since a picture is worth a thousand words, I subbed in sentence instead of word to make it closer to what we're talking about, and then tried to show how he was still wrong. Of course, none of this is adding value to the discussion, so if you still don't get it, don't bother anymore...
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The use of "more correct" was not clear to me.
I think his analogy was much more apt.
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But darned good try with "that's the way the law is." A+ for conviction.
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In other words, it doesn't say that copying the particular manner in which certain elements are creatively put together (whether in terms of some compilation or in terms of plot) is A-OK and not infringing, even if those elements are unprotectable when viewed individually.
If you have some case saying that copying the original way a bunch of unprotectable elements are put together is not infringement, I'd like to see it, but Feist and ever other selection/coordination/arrangement cases sort of contradict that.
You can also see that 7th Circuit case dealing with a description of the Twin Peaks plot for a more plot-oriented take (I forget the name).
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There is a significant danger in this precedent. If I have a significant body of photography work nearly any short film could be ruled infringing based on this 'work taken as a whole' idea. I could grab photos I'd taken over the entire course of my career, pick the ones that match each scene best, and sue. How is any film supposed to avoid 'copying' any combination of work the photographer wants to present when they have no way of knowing how they'll be arranged or what the full body of work even represents? This bar for infringement is deplorably low.
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Does the opinion say that copying any single element of LaChappelle's photo(s) is infringing? If not, I don't see how your claim is accurate.
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I agree with that statement.
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However, that isn't the case. The scenes in the video depict various situations therein contained in One photographer's portfolio.
I would favor the analogy of a basic college textbook: arguably, it does not contain any new information--instead, it takes from work already done, sampling different topics, but organizing them in a way that is, for the sake of this example, unique to that book.
Take any of those topics individually, from different books, and pin pointing infringement becomes difficult, as the same topic can be found more than once in different forms.
Take more than one topic from the same book, and organize them similarly: suddenly infringement becomes apparent because more than one part of collected work simulates the original.
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That's all any work is: a collection of non-infringing bits. An individual letter is noninfringing. An individual word is noninfringing. But when you start stringing together unoriginal bits in an original manner, and someone else copies aspects of that combination, that, in some cases at least, is infringing.
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LaChappelle chose (or at least alleges he chose) to combine various elements into a photograph. He may have no protectable interest in any one element (a leash, for example), but in the original combination of many elements.
The judge has said that the alleged copying of many of those same elements in combination in the same or similar manner they were combined in LaChappelle's photos constitutes (alleged) copying of protectable expression.
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A letter is not protectable. A word is not protectable. But, at some point, the manner in which to put those things together becomes (or at least can become) protectable.
Similarly, "a murder" is not a protectable plot element, nor is "a love affair." But at some point, the way in which you string together different plot elements becomes protectable, even though those individual elements are not.
What is wrong with that description?
I mean, obviously I'm not delving into issues like merger, scenes a fair, abandonment, etc., etc. But the notion that putting together unprotectable elements in an original way can be protected by copyright is not exactly a radical notion (see Feist).
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The combination of pieces has been created by the lawsuit. The plaintiff gathered together all those images where he thought a case could be made and discarded the rest.
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If you take and sizable collection of material from this area you are going to be able to find a dozen or more similar pictures.
It is as if you compared the portfolios of two baseball photographers and picked out a dozen matching pictures.
This is insanity.
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Taken individually, all or any of these images could fall under reasonable doubt to close the lawsuit, however the fact that Rihanna's video contained 3 scenes "substantially similar" to that of the photographer's work, leads one to believe that some producer, some director, or some stage-setter in the video's making ran into these pictures and "borrowed" them to use as fodder.
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On the up-side
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If LaChapelle ends up winning this lawsuit, won't that open the door for all those other photographers to turn around and sue LaChapelle for the same thing? I think in the long run any money he may recieve from this lawsuit would be miniscule compared to the money he would have to pay out to all those other photographers.
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Cloksin is saying that there is most likely pictures that are just as similar to LaChapelle's as Rhianna's, but were made before LaChapelle.
The internet is very big + rule 34. Q.E.D.
Anyway, congrats to all the photographers who will be able to sell their souls for big lawsuit dollars.
To all the photographers that will be sued, and to current and future photographers who dare not publish their works: sucks to be you. Next time try to be more original, you thieves.
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I will even go as far as to state that a person would have to be intentionally obtuse not to see it.
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Possible, maybe even plausible, but c'mon.
Anyway, you need to show actual copying, not just similarity, to win a copyright case. Of course, you can spend a lot of money defending before you win on those grounds.
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The main thrust of the article seems to be "courts are giving protection to mere ideas and themes." Thus, if you buy that premise, then LaChappelle is at risk from all the other preexisting "femdom" photogs out there (regardless of their particular details).
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Note that he didn't say "all femdom" but "any number of femdom" pictures. Any number unequivocally would mean a subset of "all" pictures (non exlusive), this implies that "not all femdom pictures" would qualify. Since "all" wasn't explicitly stated, the original poster clearly was refering to a smaller subset that qualified.
The qualifications of said subset were not specified. Still, this is enough to deduce that the original statement meant that "any number of fem-domme photos" refers to "a certain number of fem-domme photos that qualify". This of course means that there is also a hypotetical number of fem-domme photos that "don't qualify".
The most obvious qualification of said photos would be ones that matched the qualifications stated by the judge, since said comment is in response to an article quoting that judge. Anything else would just be, like, stoopid.
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No, I did not mean that any photograph whose subject matter consists of "Fem-Domme" ideas would be eligible for a lawsuit against LaChapelle.
What I DID mean was that there are plenty of photographs that fall under the "Fem-Domme" category that have similar ideas as those portrayed in the photos posted in Mike's original article.
e.g. A photograph of a woman wearing a latex hood. Go ahead, do a Google search for "woman in latex hood" and see how many results you get that are similar to the two photographs posted above. You can even turn safe search up to strict and you still get tons. If LaChapelle wins this case, each of the photographers that took those photographs in your Google image search prior to LaChapelle now have a precedent on which to sue LaChapelle.
Look at the other photos, do you think it would be really hard to find a photograph of a man walking on hands and knees wearing a collar, with a leash held by a woman walking behind him, in front of some big building? Oh, and you can even specify that the subjects are walking towards the right side of the photograph, with the leash in the woman's hand and a long slender object in her right hand.
My point is that LaChapelle is not the first one to photograph this "idea". And when you break down the composition of the photographs to these basic elements, you should be able to see that there is no infringement going on here.
But if you're too stubborn to admit that, then when LaChapelle wins this case, he's opening up a Pandora's box of new litigation that has him as the target.
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"Thus, I find that an ordinary observer may well overlook any differences and regard the aesthetic appeal of “Striped Face” and the “Pink Room Scene” as the same,""
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The judge certainly does not say the only similarity is the ideas behind them. If the judge had said that, s/he would have dismissed the case.
Rather, the judge said an ordinary "may well" find that.....
In other words, it could be concluded differently by different ordinary observers, and should properly be decided by a jury (not a judge).
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Whether or not particular things that are copied (or alleged to be copied) is a question of law applied to alleged facts.
At this stage in the case, the judge has to take all facts alleged in the complaint as true.
I have no idea what the rest of your post is getting at.
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That's not "in place of" showing actual copying. That is a means of showing actual copying.
Anyway, you have to convince a jury that there was actual copying. Yes, similarity is evidence that can be used to try to convince them.
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http://www.nysd.uscourts.gov/cases/show.php?db=special&id=120
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Stealing ideas, I don't care, I can't create without it
Judges and lawyers may break my bones
But pi-ra-ting excites me
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Have you patented it yet?
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copycats, pirates, freetards and now idea ninjas, what will it be next?
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Stealing's easy. It's planting an idea that's hard.
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...so that's where i went wrong
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general frantic mood?
Well, this is S&M after all. It shouldn't be that hard to find prior art.
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A motion to dismiss is not a motion for summary judgment.
2) In the decision, the fair use argument is characterized as follows:
If this is sum and substance of Rihanna's fair use argument, the judge is dead on that it is unavailing.
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Re: A motion to dismiss is not a motion for summary judgment.
I do note, though, that the judge's mention that Rihanna set out to make a "LaChapelle-esque video" doesn't, to me, weigh in favor of plaintiffs. "Inspired by" does not mean "illegally lifted from." It's hard for me not to read this as the judge reasoning backwards...as judges have been known to do, from time to time. In fact, this element of the complaint could have been used to defendant's advantage in her pleading of fair use--specifically, that use of LaChapelle's images, if any, was "transformative" from stills to motion...or something. But, without seeing the pleadings, it does look like Rihanna shit the bed on fair use.
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Just tell the self-righteous around you to piss off, or ask them why they hate God's work (the human body).
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I'm not sure why, but you always gloss over the fact that non-literal copying can be infringing, that is, the test is whether they are "substantially similar." The judge explains all this if you read the opinion.
Your "analysis" is quite silly. The judge full well acknowledges that there is an idea/expression dichotomy, and goes on to explain what the protectible elements are and why he thinks they were infringed.
As far as I can tell, the only one who doesn't understand the law is you, not the judge.
How wouldn't there be fair use here?
Have you ever even once thought that copying isn't fair use?
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When a man wearing a suit sticks a gun in your face and sez "Gimme your wallet".
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and my call, as an ordinary observer is that the alleged copy was not appropriated.
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I read the judges opinion. The judge sez: "This is a stickup".
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Nice use of buzzwords--lousy summation of the law.
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I'm not urging you to. In fact, I don't think there's really a whole lot more to discuss.
Eldred asserted that the idea/expression dichotomy was one of copyright's builtin accomodations for the first amendment. Eldred was wrong about that. There isn't any idea/expression dichotomy. This case shows that clearly. We can all see the pictures.
So, while I have grave concerns about the current levels of so-called “cyber-crime” on the internet today, nevertheless I have come to the conclusion that it's necessary to maintain robust illegal channels in order to preserve opportunities for political dissent.
See you on the darknet.
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lol.
top notch "analysis" there.
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I realize 'prior art' is not a standard in copyright, however, if something is so generic as to be instantaneously recognized as part and parcel to a style...
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Did you really read the opinion? The judge explains which parts are protectible, and it explicitly does not include "standard elements" like you're saying.
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Look! I can post non-sequiturs too!
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"prior art" as the term is used in a patent context means that if one guy did it once before, your invention isn't novel and your claim is not valid.
That certainly is not the case in copyright law or scenes a faire (grecian urn, etc. etc.).
I've actually been meaning to write an article on this for a long time, but I think the scenes a faire doctrine can ultimately be reduced to an "originality" argument. If certain things are so common in your genre that you practically have to use them, then it's not really "original" to you. Alternatively, if they are so common, then it's hard to argue they were copied from the plaintiffs work (and not some other work), although that doesn't necessarily work where copying is conceded.
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Nobody disputes that the current state of the law allows for liability over "substantially similar" items, and that such items can be "infringing" under the current state of the law.
But (leaving aside the fact that none of the photos in this instance are "substantially" similar in any way) what Mike and I argue is that if you are going to have liability for "substantially similar" works, then its hypocritical for the legal establishment to claim that copyright doesn't protect "ideas". That is a false claim. It most certainly does protect "ideas" beyond their concrete expression. For the legal profession to state otherwise is a lie - pure and simple.
The very definition of "copying" implies a literal cloned reproduction of an item. There is no such thing as a "substantially similar" copy. You can certainly have a substantially similar "work" or "idea". But if X is "substantially similar" to Y, then it is, by definition, not a "copy".
The entire notion of copyright law protecting "derivative works" is completely inconsistent with the limitations that the social compromise over copyright was meant to embody. It also clearly hinders the creation of new works, rather than promotes them - which is what the very justification of the copyright clause is premised on.
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There is the extremely concrete/specific on the the furthest expression end of the spectrum and the extremely vague/abstract on the furthest idea end of the spectrum.
that fact that something slightly more vague/abstract than the most specific/concrete example possible might be considered "expression" does not make the distinction between expression and idea a "lie."
"The entire notion of copyright law protecting "derivative works" is completely inconsistent with the limitations that the social compromise over copyright was meant to embody."
Please englighten us as to how the copyright was "meant" to allow immaterial variations on protected works.
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We understand how it is used. This lawsuit is an example of how it is used.
Mike and others argue that this use is not what was intended.
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But this is the way copyright law has been for decades, and when the new Copyright Act was approved in 1976 they didn't try to change that aspect of the law.
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The only justification for the law is economic. So if the variant does not reduce the market for the original, the law has no business preventing it.
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“Originality” used to be the sine qua non of copyright. The originality requirement was derived from the constitutional limitation implicit in “authors and inventors”. See Feist.
Then Justice O'Connor retired and Judge Posner got his wacky economic theories elevated to constitutional heights. Now “ ‘substantially similar‘ is really only a proxy for market effect.”
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Don't worry, It can't be locked up
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FTFY.
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Let's make mine the worse of the two, for the extra-condescending "FTFY." So, do I win or lose?
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Ridiculous.
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Bringing judging to a whole new level
Is she a judge or an art critic???
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You simply can't copyright an idea or expression in a photograph (just the "actual" photograph). None of these images are exactly alike, and as far as I can see (as a photographer), have only been loosely based on the photographer's images. Such images can easily have been conceived in the minds of other photographer's without ever having seen this particular batch (I've experienced this many times). In my eyes, the images themselves are different enough from each other that I probably wouldn't have connected them.
I don't get it. This isn't, as far as I can see, a copyright infringement, not in any way.
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Um, what? It is possible to infringe the copyright in a photograph without making an exact copy. Where are you getting this stuff?
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Fair Use
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And, just to be clear, I think this is a lousy lawsuit, so please don't mistake my comment for supporting it.
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His wrongness is confirmed in one particular instance.
Therefore the idea/expression dichotomy doesn't exist.
Makes perfect sense, right?
Well, no. Just because the idea/expression dichotomy does not exist in the form Mike would like it to exist (i.e., with the line being draw in a must more permissive manner than most courts draw it), does not mean it doesn't exist.
When you're wrong, at least acknowledge *how* you were wrong. Don't make up sky-is-falling nonsense.
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Mike continually ignores this, though, in these types of articles, by focusing on the individual elements themselves.
This, of course, is all assuming that the individual elements (e.g., "frantic mood") are not protectable.
The idea/expression dichotomy is a spectrum between vague and specific, and courts draw the line somewhere in the middle. Mike seems to think that the line is drawn only at the extremely specific end, and when courts draw it at all further toward the vague end (which they usually do), he acts as if the entire spectrum has disappeared.
In other words, the court says what was copied here consisted, in part, of expression, but Mike doesn't say "huh, I guess I was wrong and the line between expression and idea isn't where I thought it was." Rather, he says the court is ignoring the distinction entirely.
Now that I've responded to your request, where are these "more and more posts saying the same damn thing" you're referring to?
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What is the point of allowing any variation?
Mike has in mind some economic grounding; which is the only thing that makes any sense. The law seems unhinged from that.
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You're absolutely right. But that's the way it is. It is one of the most difficult questions to answer in copyright law, and it can only be answered on a case-by-case basis. Some opinions try to give guidance on where the line might be drawn in relation to particular types of works (see Gates Rubber Co. v. Bando Chemical Industries Ltd.), but that's just general guidance.
"What is the point of allowing any variation?"
I don't understand your question.
"Mike has in mind some economic grounding; which is the only thing that makes any sense."
I have never seen Mike make an economic argument for only considering exact copying of literal expression to be infringing.
Anyway, as expressed by Judge Learned Hand many years ago, the argument for protecting more than just the exact, literal, specific expression has been summed up as follows: "It is of course essential to any protection of literary property . . . that the right cannot be limited literally to the text, else a plagiarist would escape by immaterial variations.” Nichols v. Universal Pictures Co., 45 F.2d 119, 121 (2d Cir. 1930) (L. Hand, J.).
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> I don't understand your question.
You do not seem to be considering why we have any of this copyright law at all.
Copies of good things are good! What is the point of restricting copies? -- The only rational answer is the standard pragmatic economic justification (as exemplified by Landes & Posner).
We want to restrict or allow copies according to intended market/economic effect. *That* is what anchors all this. *That* is the reference point. That is ultimately how one should decide what is immaterial in 'immaterial variation'.
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No, I just really don't understand your use of English in the following case: "What is the point of allowing any variation?"
Anyway, as far as economic arguments go, you can certainly argue that anything that creates a greater incentive to creat (through greater control/reward) might have benefits that outweigh the detriments.
So, for example, the prospect of writing (or producing the movie) Harry Potter & The Chamber of Secrets and having no right to stop others from writing (or producing the movie for) Harry Potter & The Next 6 Blockbusters is a lesser incentive than having that control.
There are many complex economic factors to consider when determining whether that greater economic incentive is worth the restrictions placed on others, but simply saying the sequels/movies/etc. don't lessen the market for the original does not answer the question.
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Then sit back and watch society collapse. It'll be fun watching Disney implode.
I know I'm being silly here; there are plenty of flaws in my idea. I'm just thinking, if you actually managed to force those who are the strongest advocates of increased IP protection to acknowledge the origins of their own IP, the results would be very eye-opening. As it is the levels of hypocrisy are drowning several small countries.
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... the court is just not in the "mood" to read 17 USC § 102(b) into the statute. The dichotomy doesn't have "aesthetic appeal".
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"Apparently, the judge in the case disagrees."
Copyright is becoming MORE entrenched after your efforts, not less. Indeed, to repeat what I've said before, you and your followers here have pretty much convinced me of the good that copyright does -- and to hold that pirates aren't freeloading but actually make for better products, whew.
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Re: "Apparently, the judge in the case disagrees."
It's the reason why OJ isn't a murderer, but he will be paying for it on the civil side for the rest of his life.
It's actually sort of classic. The anti-copyright people bitch and don't want the law to be applied in a criminal manner, but then bitch just as hard when they realize that the standards for finding someone liable is way lower in civil courts.
As for this case, all the judge has ruled against is a dismissal, meaning that there is enough at least on the surface to merit further time in court. The judge didn't find for the either side, only that there was enough information to merit a civil hearing.
The sky isn't falling Mike, but you may not like the way it hangs.
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Re: "Apparently, the judge in the case disagrees."
really? we have?
all this time i was thinking you had your mind made up looooong before you ever came here, what was i thinking
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Re: "Apparently, the judge in the case disagrees."
And, dude: read the caselaw if you're going to talk about actual cases, and please cite some. Because I've got more against than for, on this one.
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I have a idea!
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Re: I have a idea!
http://www.marthastewart.com/276206/molecular-gastronomy-at-the-cooking-lab
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Queen video?
Besides, there's only, generally speaking, bathrooms, bedrooms, kitchens, living rooms, and entryways. They can be black, grey, brown, white, red, pink, orange, yellow, green, blue, or purple. The mood will inevitably be relaxed, anxious, sexy, or a few other moods. That's only a couple of hundred different possible rooms. Would the judge care to specify which combinations are *NOT* copyrighted, perhaps copyrighted a dozen times or so?
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Pay me.
I described all of this in an AOL Chat room back in 1995.
Pay up David. :)
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Yes, including me.
Let me try:
EVERYTHING SIMILAR IS COPYRIGHTED
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Everything similar is not copyright. But when you are using civil legal action rather than criminal, the standards for judgement are way lower.
Too bad that reality is back biting you guys on the butt.
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Sampling Art
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I think this passes the idea/expression dichotomy threshold
Our analysis.
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We all stand on the shoulders of giants
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