It is not possible to copyright an idea. The owner of a small business in Georgia recently received an undoubtedly unwanted lesson in this sometimes-overlooked aspect of copyright law when she saw her suit for copyright infringement dismissed following the court’s grant of summary judgment in the defendant’s favor.
At issue in Ristuccia v. Super Duper, Inc. were decks of flash cards used to assist individuals undergoing speech therapy to learn to properly pronounce the letter ‘R’ in the English language. The plaintiff claimed that the defendant infringed the decks she published by “(1) copying her selection of R allophones and/or words and images, and (2) arranging its Vocalic R Cards decks in a phonetically consistent manner.” The Plaintiff believed her sound selections and arrangements to be original and protected by copyright.
However, as the trial court explained in its opinion, the scope and availability of copyright protections afforded to the “selection and arrangement” of constituent elements in a compilation is “thin,” even in cases where the bulk of the elements comprising an alleged infringer’s work were copied from material published by a claimant. With regard specifically to the arrangement of the selected components, the court stated:
Once again, Plaintiff is attempting to argue that her educational ideas are protected by copyright. They are not. Although the concept of arranging words in a “phonetically consistent” manner may be a useful educational innovation, a concept is not protectable by copyright. Defendant cannot be liable for simply arranging a non-infringing selection of words in a “phonetically consistent” manner.
(citations omitted)
This issue is sometimes described as the “idea-expression dichotomy” in copyright law. In many instances, it can present more of a challenging dilemma than in the Ristuccia case, because the “idea” and the “expression” are both intangible concepts, and their contours are therefore subjective. In closer cases, the outcome may be different, and a business that uses copyrighted content in a way that it believes to be a different expression of a common idea may nevertheless find itself on the losing end of a lawsuit.