Two Courts, Two Ad Campaigns, and Copyright's Idea-Expression Dichotomy

Lawyers say this to clients all the time:  you can’t copyright an idea; copyright protection extends only to an author's original expression of an idea. (See 17 U.S.C. § 102.) This fundamental principle - a.k.a. the idea- expression dichotomy - is critical to ensure that copyright law fulfills the constitutionally mandated goal of "promot[ing] the Progress of Science and useful Arts" (U.S. Const. art. 1, § 8, cl. 8). If copyright law didn't allow future artists to repurpose and remix the ideas of yore, fewer creative works would be produced and published, and the public would be the poorer. After all, to some degree, all stories boil down to a single idea - the “hero's Journey"; every artist references, pays homage to, and stands on the shoulders of the giants that came before, and “there is nothing new under the sun” (Ecclesiastes 1:9). Ideas must be free as air.

This principle is easy to state but can be hard to apply since the boundary between an idea and its expression can be elusive. Concepts and their execution can become inextricably intertwined and difficult to untangle. As Judge Learned Hand famously observed nearly 100 years ago when confronted with the question of whether a film and stage play with similar plots and characters were substantially similar:

"Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his "ideas," to which, apart from their expression, his property is never extended.

Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930). While Courts have developed some shorthand “tools” to make sure that copyright protection is not extended to ideas - including scènes à faire and the merger doctrine (see this post) - any attempt to come up with hard and fast rules is tilting at windmills and chasing waterfalls. Ultimately, case-by-case line drawing is required. 

Two recent cases provide an opportunity to see the idea-expression dichotomy up close and in action.

In the first, plaintiff Jangle Vision owns a copyright in (as it put it) “two highly stylized, imaginary female figures distinguished by unnaturally shaped bodies in colored skins revealing only eyes, nose, and mouth.” Here is the depiction of the “twins” included in Jangle Vision's complaint:

Jangle Vision alleged that designer Alexander Wang infringed on its copyright by incorporating similar characters in an ad campaign for a handbag. Here are screen grabs from the Alexander Wang advertising video:

There are obvious similarities here:  Jangle Vision's twins and the characters in the advertisement are tall and thin; they wear skintight, pink bodysuits; masks cover their face and head; and they are posed in an elongated and unnatural manner. But, as the Ninth Circuit noted in a summary opinion, “most of these elements … are not independently protectable.” (Perhaps the judges on the panel were familiar with the oeuvre of Ariana Grande, Lady Gaga, Beyonce and Madonna.) And, once the unprotectable elements were filtered out, the characters were “more dissimilar than similar":

"The design of the Twins’ bodysuits and face masks are distinct from those of the advertisement characters. The Twins, moreover, appear in different environments, are often colored differently, are positioned in different postures, and have faces that are distinctive and largely visible, while virtually no facial features are visible in the advertisement."

For these reasons, the panel affirmed the district court's holding that, as a matter of law, once the unprotectable ideas were filtered out, the works were not substantially similar.

(A footnote:  the parties disagreed as to whether the Jangle Vision twins should receive “broad” copyright protection, which prohibits “substantially similar” copies of a protected work, or whether they should receive “thin” copyright protection, which prohibits only “virtually identical” copies, an issue I covered recently in this post. However, because the court held that there was no infringement under the more rigorous substantial similarity test, the court did not need to reach this issue.)

In the second case, the plaintiff Tangle is a toy manufacturer that secured copyright registrations for nine kinetic sculptures made of seventeen or eighteen interlocking, 90-degree curved pieces, as shown in this chart:

Tangle also sells these toy sculptures in pink chrome:

Tangle's sculptures (as described on its website) “can be turned and twisted to create an infinite number of sculptures” and therefore “invite both reflection and participation from everyone who views them.” 

In the spring of 2023, defendant Aritizia created window displays for its retail stores that included chrome pink sculptures made of eighteen interlocking, 90-degree curved pieces that were configured in various ways. Here are examples of the displays from the court's opinion:

In each of the window displays, Aritizia had positioned the manipulable chrome sculptures in different ways. Tangle argued that all of the window displays infringed upon its copyrights because “if you have the 17 or 18 interlocking segments of the same size, then any configuration of them, provided that … the embodiment can be manipulated along the same axes … will be infringing.”

The defendant moved to dismiss the complaint under Rule 12(b)(6) on the grounds that Tangle essentially was seeking to protect an unprotectable idea rather than protectable expression. Noting that courts often “struggle to locate the ‘faint line’ between protectable expression and unprotectable ideas,” the district court held the Tangle had not plausibly stated a claim for copyright infringement:

"Tangle’s theory is as pliable as its product. In claiming that all of the different Aritzia displays, which varied in number of segments and positioning, infringe all of Tangle’s copyrighted sculptures, Tangle seeks to copyright a particular style. Style, no matter how creative, is an idea, and is not protectable by copyright. Moreover, by not including clear outer boundaries or defined elements of the allegedly protected expression, Tangle does not give the Court any concrete expression to enforce." (Citations omitted and cleaned up.)

The court also rejected Tangle’s “sweeping argument” that any configuration of 17 or 18 interlocking segments of the same size and manipulable along the same axes would infringe Tangle’s copyrights, since only works that are “fixed” are subject to copyright protection. Unlike a mobile sculpture by Alexander Calder (which is sufficiently fixed for protection, despite the fact that it is designed for movement), “Tangle cannot claim ownership of every conceivable iteration of tubular sculptures made of interlocking 90-degree segments merely because its own such sculptures can be manipulated into any configuration. Instead, Tangle must allege that a specific accused work infringes upon a specific, fixed, protected work.” 

The court granted Tangle leave to amend its complaint but warned that if Tangle chooses to replead "it needs to make clear what precisely it is alleging is subject to protection, including with reference to specific copyrighted works. The ‘core’ of its various copyrighted works will not do."

Jangle Vision, LLC v. Alexander Wang, Inc., No. 22-55642, 2023 WL 7042518 (9th Cir., Oct. 26, 2023)

Tangle Inc. v. Aritzia, Inc., No. 23-cv-01196-JSW, 2023 WL 6883369 (N.D.Cal. Oct. 18, 2023)