What Copyright Isn’t: Protection Ideas versus Expression

Recently I’ve had a lot of authors ask about whether copyright, or any law, can protect an idea for a story. The answer is basically “no”.

Copyright law protects the fixed expression of your ideas: the words of your story, the illustration you created, even the source code for the computer program you wrote. However, it doesn’t protect the underlying idea. Lots of people can (and do) write similar stories: think about how many romance books are out there, or cozy mysteries. They’re pretty formulaic, right? But no one’s expression of the story is exactly the same as anyone else’s, usually.

If you copy someone else’s words, or a good portion of their words, that’s likely to be a copyright infringement, but if you use a similar idea for your story, it probably won’t be an infringement. There are tough cases in practice where it can be difficult to draw the line between substantially copying someone’s actual story (words, characters, etc.) and just deriving inspiration from a similar idea. For the most part, though, a copyright infringement must be more than simply writing in a similar genre or with a similar plot.

There’s no actual law that protects an author’s ideas per se. There is a registry maintained by the Writer’s Guild of America West that provides a place to register ideas for movie scripts, books, etc. This can provide evidence, and notice, of when a writer came up with a particular idea, but it doesn’t create any kind of legal right or copyright in the idea itself.

There are situations you’ve probably seen where one book or story has clearly drawn closely from another and there has been no copyright litigation about it. Commercialized fanfiction is an obvious example. Most people know that E.L. James’ incredibly successful Fifty Shades of Grey series started out as Twilight fanfiction. James’ work may or may not be a copyright infringement because of how closely it follows character types and storylines from Stephenie Meyer’s Twilight books, albeit in a different genre (romance/erotica versus teen paranormal romance). The fact that Meyer and her publishers haven’t sued James and her publishers doesn’t mean that James’ work isn’t a copyright infringement. If Meyer had sued, it wouldn’t mean that there necessarily was a copyright infringement either.

There’s no obligation for an author concerned about unauthorized copying to actually sue to protect their rights. Many authors won’t mind new work based on their own work. They may think it’s flattering. They may think it’s not worth their time to make a big deal of it. And if they are worried about copyright infringement, there’s no guarantee a court will agree, except in cases of flagrant digital piracy: where someone simply copies and distributes someone else’s entire work word-for-word without permission.

What copyright is and isn’t—what it does and doesn’t protect—can raise challenging questions in some situations, but if you remember that simply drawing inspiration from someone’s work without closely copying their words, characters, or plot is generally not a copyright infringement, you should be okay.

And, of course, my usual disclaimer applies to this column: Nothing written here is intended as formal legal advice and folks who need help with particular issues should consult an agent or attorney.

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