 We turn now to the second of the foundational doctrines in copyright law, the idea expression distinction. Every system of copyright law contains some version of this distinction. In U.S. law, its statutory locus is Section 102B of the Copyright Act, which provides, quote, in no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, end quote. Some scholars, such as Professor Pam Samuelson, argue that this provision reaches more broadly than the idea expression distinction, but I'll put that controversy aside for the time being. In the Eldred case, which we'll consider in detail in a subsequent lecture, the United States Supreme Court suggested that the idea expression distinction is necessary in order to reconcile copyright law with the principle of freedom of speech embodied in the First Amendment of the U.S. Constitution. Lots of other examples of this distinction can be found in the law of other countries. So what exactly is this famous fundamental distinction? It's easy to state, but surprisingly hard to apply. The key concepts are clear enough. Neither ideas nor facts are protected by copyright law, only the way in which an author expresses ideas or facts is protected. Simple enough. Unfortunately, the key terms, idea, fact, expression, are all ambiguous and contested. To figure out what they mean, you need to examine some applications of the principles. Here's a general guideline. When interpreting and applying the idea expression distinction, try to avoid attributing to those terms their ordinary meanings. Think of them rather as terms of art. Shorthand references to loose clusters of things that, for policy reasons, the law includes in or excludes from copyright. With that principle in mind, let's consider some of the context in which the idea expression distinction arises. The first such context is known as the merger doctrine. Suppose there's only one set of words that accurately conveys particular idea. In such a situation, the principle that ideas are unprotected and the principle that expression is protected clash, which prevails. The principle that ideas are unprotected. So anyone is free to use that uniquely appropriate set of words with impunity. Such situations arise more often than you might think, particularly in the context of computer software. But we'll wait to take up those illustrations until lecture number three, when we consider the various kinds of works the copyright covers. The second context is known as the Senza fair doctrine. The 1978 case of Alexander v. Haley provides a good illustration. The basic facts of that case were as follows. Prior to the publication of Alex Haley's book, Roots, the plaintiff wrote a similar book about the history of her own family during slavery and about her own gradual awakening to the importance of her heritage. When Roots was published and became famous, the plaintiff brought a copyright infringement suit against Haley. In support of her claim, the plaintiff provided a long list of parallels between her book and Roots, arguing that Haley had copied heavily from her. The court eventually ruled that, despite the large number of similar scenes, Haley had not engaged in copyright infringement. One of the grounds on which the court rejected the plaintiff's assertions is that they involve so-called Senza fair. Here's the language in which the court expresses this judgment. Quote, these are incidents, characters, or settings, which, as a practical matter, are indispensable or at least standard in the treatment of a given topic. Attempted escapes, flights through the woods pursued by baying dogs, the sorrowful or happy singing of slaves, the atrocity of the buying and selling of human beings, and other miseries are all found in stories at least as old as Mrs. Stowe's. Other examples include scenes portraying sex between male slave owners and female slaves, and the resentment of the female slave owners, the sale of a slave child away from her family and the attendant agonies, the horror of punitive mutilation, and slave owners complaining about the high price of slaves, end quote. All of these images, the court ruled, constituted unprotected ideas because they were standard vignettes in the genre of slave narratives. Some more recent and perhaps surprising applications of this doctrine of Senza fair involve photography. Here too, courts refuse to grant copyright protection to images that they conclude are standard or typical of a particular genre. For example, in the 2005 case of Bill Diodata photography versus Kate Spade, the plaintiff contended that this photograph, which appeared in an advertisement for women's shoes, was infringed by this one. The court rejected the plaintiff's claim, arguing that the positioning of a model sitting on a toilet with her feet angled inward, though, quote, seemingly unnatural, end quote, was a common trope. Photographing stylish women in this pose to showcase fashion accessories was an idea, quote, used often in popular culture, end quote. Similarly, in the 2003 Gentio case, the photograph on the right side of the slide was held not to infringe the copyright in the photograph on the left side, because even if one photographer had been imitating the other, the compositional elements they had in common were, quote, standard photographic conventions or devices, end quote, and thus not copyrightable. Here's a more straightforward application of the same principles. Suppose I write and publish a cookbook, a collection of recipes of a particular sort. Suppose further that I created some of those recipes myself. You copy some of my recipes and include them in your own cookbook. Have you engaged in copyright infringement? If the recipes that you copied contain nothing more than descriptions of ingredients, quantities, ways of combining things, cooking times, and so forth, in other words, instructions for creating the dishes in question, then the answer is no. The reason is that unadorned recipes are said to be ideas or methods of operation and thus not subject to copyright protection. By contrast, if the recipes you copied included expressive embellishments, for example, descriptions of how the dishes taste or suggestions concerning social circumstances for which they would be appropriate, then you would be in trouble because such things are considered expression. Another example, maps have been protected by copyright law for a long time. But not all components of maps enjoy copyright protection. For example, the location of roads, mountains, rivers, and political boundaries, the names of cities and towns, are all excluded from copyright protection. Thus, you can copy such things from someone else's map onto your own without running a foul of the law. This shouldn't be terribly surprising. What's more interesting is the fact that newly coined place names are not shielded. Suppose, for example, an explorer surveys a remote mountain range, selects names for the hitherto nameless peaks, and draws up a map that includes those new names. Another cartographer copies those features and those names into his own map. Copyright infringement? No. It's sometimes said that the newly applied names, although created by the original explorer, become facts once applied to the features of the world. But that can't be right. By the same logic, the text of my novel becomes a fact once it's published and I lose copyright protection for it. A more plausible reason is that to recognize copyright protection for newly created place names would frustrate important public policies concerning the communication of geographic information. Latent in that rationale is the seed of a much more general principle that will flower in subsequent lectures. So, what aspect of maps do enjoy copyright protection? The answer is original selection, arrangement, or presentation of individually unprotected elements. The net effect is that entirely conventional maps receive no protection whatsoever. Consider, for example, this screenshot of a map created by Google of the sector of Cambridge, Massachusetts, that includes Harvard University. If I copy it without permission, as I've done for the purpose of this slide, have I engaged in copyright infringement? Probably not, because it's difficult to locate in the Google map any unconventional selection or presentation element. We come finally to the tricky case of history. Perhaps the most striking effect of the idea expression distinction is the limited legal protection enjoyed by works of history. Suppose, for example, I spend years investigating the life of a little known politician and then write and publish a biography of him. You read my book and then, relying on it, quickly write your own biography of the same politician. You're a better writer than I am, so your book sells better. I'm angry. I point out that you could not have written your book without mine and that most of the story I told and most of the arguments I made in my book can be found in yours. Do I have a copyright claim against you? If the things you lifted from me consist of facts about the life of the politician, then the answer is no. No matter how much time and pain, it took me to ferret them out. This principle, for example, governed the outcome of the litigation between two historians, rising out of the close similarity between two biographies of the Rosenbergs, who were tried for treason in 1953. Because all of those similarities were deemed to involve facts, the defendant escaped liability. What if I included in my biography some speculations and the same speculations appear in yours? If I have represented my speculations as facts, then they too are unprotected. The rule underlying this outcome is known as copyright estoppel, having depicted an assertion as a fact. I am said to be a stopped from subsequently recharacterizing it. So for example, in the Nash case, the Court of Appeals ruled that the plaintiff's contention in his book, that John Dillinger had not been killed by the FBI at the Biograph Theater, but had lived on in California, was not protected by copyright because the plaintiff had offered that contention as a fact. What if you live from my biography, not a factual contention, but an historical theory? Once again, I will lose, but for a different reason. Historical theories are considered ideas and thus unprotected. So for example, in the Holing case, the Court of Appeals held unprotected the plaintiff's assertion that the Hindenburg dirigible had been destroyed by a member of its crew in an effort to discredit the Nazis. The bottom line is that an historian should not expect to get much protection from copyright law. To be sure, if a second historian copies significant hunks of her pros or closely tracks original ways in which she has expressed arguments, she may have a claim. But if, as in the usual case, a second historian freerides on her research and lifts facts or ideas from her books, she has no recourse. These examples surely do not exhaust the various contexts in which the idea expression has been applied to limit the scope of copyright, but they should suffice to give you an overall sense of the law in this area.