This past week, I was able to catch a number of great acts at the Toronto Sketch Comedy Festival. On my way out of the theatre after one such show, I overheard an audience member commenting on the similarity of a sketch that he saw in the show to an idea that he had, also set in a restaurant. This feeling is not uncommon when it comes to creative pursuits. After all, most of us have had the idea for a movie about an undercover police officer who finds himself in too deep with a street racing crew, fronted by a muscular but charming ex-convict, right? Unfortunately, that movie is The Fast and the Furious, and it has already been made (seven times over).
But does that audience member have any copyright claim to his idea? More importantly, can I make my street-racing-undercover-cop-movie without being sued? While we could go into a fair amount of detail regarding copyright law, in order to answer those questions, we need only focus on one of the founding principles of the Copyright Act: the dichotomy between idea and expression.
Copyright only protects the expression of ideas, not the ideas themselves. For example, every customer at Sweet Jesus has the idea of photographing their ice cream cone, but only their actual photograph has copyright protection under the law (Author’s note: Please get out of the way of other customers in line before taking said photo). This may seem simple enough, but in some cases, the line between idea and expression is difficult to define.
Judges and academics alike have long struggled with this issue. A case that illustrates this challenge is Mattel v. MGA Entertainment. Here, a former Mattel employee left the company and created the Bratz doll. It was argued that he had conceived of the idea while at Mattel. The question of whether the Bratz doll (the expression) was substantially similar to the sketches (the idea, but also an expression in its own right) that the employee had made while at Mattel formed an important part of the court’s decision. The U.S. 9th Circuit Court of Appeal had to determine whether the works, themselves, were similar beyond the fact that they illustrated the same idea. The case was decided in favour of Mattel, then reversed, which was then reversed again and, re-reversed. Ultimately, Mattel lost.
The distinction will, inevitably, be very fact-based. Take the above example. The audience member who had an idea for a sketch does not have any copyright claim over his concept of a sketch about a restaurant. He has not written (ie. expressed) that idea. Had he written his restaurant sketch, he would have copyright over his script. If another comedian were to write a script in a restaurant setting, the audience member would be hard-pressed to claim copyright. After all, the idea of a restaurant sketch is very broad. However, if another comedian were to write a restaurant sketch that shared character names and a substantially similar narrative to the audience member’s sketch, it is possible that he may have a claim. It would depend on a number of factors including the originality of the sketch, the creation dates and whether the similarities are found to be substantial enough.
We live in a society with many shared experiences and, as such, shared ideas. It is the expression of these ideas that copyright law seeks to protect. This distinction is illustrated by the fact that filmgoers were legally gifted with the release of two friends with benefits-themed movies within a single year (Author’s note: Friends with Benefits is the superior expression of the similar idea found in No Strings Attached).
The expression and idea dichotomy can be tricky to navigate as it is very fact specific. If you are concerned about copyright regarding your creative work, it is always prudent to consult a lawyer who can give you individualized advice.
Now, if you would excuse me, I have to go think about a new name for my band. It turns out Bran Van 3000 is taken.
Reasonable Doubt appears on Mondays.
A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.
website@nowtoronto.com | @nowtoronto
