Sunday, August 2, 2009

Q&A: Can an idea be protected by copyright?

Copyright 2009 Tonya M. Evans Limited license granted to copy and distribute this post provided such copying and distributing is of the entire post, and includes the author's copyright and contact information. All other rights reserved.

[Excerpt from Copyright Companion for Writers, by Tonya M. Evans-Walls]

The Copyright Act expressly excludes ideas from its protection. The American Heritage Dictionary defines “idea” as “something, such as a thought or conception that potentially or actually exists in the mind as a product of mental activity.” Therefore, the idea of writing a book about, for instance, a falsely accused prisoner who escapes from jail to prove his innocence and find the real killer cannot be protected under the Copyright Act. But the act does protect a written manuscript based on that idea. This conclusion makes sense in light of the way copyright is created. Copyright protection exists the moment an original and creative artistic or literary expression is fixed in a tangible form. Until an idea is fixed in a writing or recording, it is just that – an idea. Once fixed in a tangible form, the expression (assuming, of course, that it is also original and has some modicum of creativity) is protected by copyright.

It is not correct, however, to assume that an idea can never be protected. In fact, the protection of ideas is critical in situations where, for instance, you submit a book proposal to a publisher, pitch a screenplay to a producer or studio, or brainstorm with a collaborator about potential story lines. In such situations, ideas may be protectable under state law related to theories of contract ( a non-disclosure agreement, for example), property, or in some cases, misappropriation.