Intellectual Property Protection for Ideas
“About the author: Scott Lesowitz is a cum laude graduated of Harvard Law School and a former Assistant U.S. Attorney. His practice is located in Beverly Hills, California.His e-mail address is scott@syversonlaw.com.”
In practice, to what degree ideas are subject to intellectual property protection can be nuanced and at times convoluted. In copyright law, it is clear that ideas are unprotected, but the courts struggle in practice determining when something is merely an unprotectable idea or a protectable expression of an idea. In the case of trade secret law, the courts disagree whether ideas can even be protected.
What is clear is that mere creative sparks are unprotected under any type of intellectual property law. On the other end, there is clear protection for fully-developed expressions of an idea (in the case of copyright) or ideas that been turned into a useable and valuable body of information (in the case of trade secret), or a fully developed invention (which may implicate both patent and trade secret). In the middle, the law can be muddled.
As ideas go largely under intellectual property law, people concerned about theft of their ideas should try to enter into nondisclosure and non-usage agreements with other people with whom they share their ideas.
The lack of protection for ideas arises as an issue most often in copyright litigation and trade secret litigation. Patents apply only to ideas that are sufficiently articulated to meet the definition of inventions and are subjected to the formal patent process.
In contrast, no formalities such as registration are required to receive copyright or trade secret protection. In the case of trade secret, there is no system of registration or the like (usually making a trade secret known in a public application for a patent ends trade secret status). In the case of copyright, a plaintiff may wait until he or she initiates a lawsuit for infringement to begin the registration process. Even then, a copyright registration is fairly easy to obtain, and a court may disagree with the Copyright Office’s findings. Lamps Plus, Inc. v. Seattle Lighting Fixture Co., 345 F.3d 1140, 1144 (9th Cir. 2003) (noting that registration merely creates a rebuttable presumption of a valid copyright); Nova Stylings, Inc. v. Ladd, 695 F.2d 1179, 1181 (9th Cir. 1983) (“As is evident, a party may now sue for infringement notwithstanding the refusal of the Register to register the claim to copyright.”). (One should note that obtaining a copyright registration is usually a very good idea even though copyrights accrue automatically.)
Copyright
Starting with copyright, one of the first principles taught in any copyright law course is that copyright protects expression of ideas, but not the ideas themselves. The text of an original story receives copyright protection. The general idea for a story is not copyrighted.
In practice, the distinction between an idea and a copyrightable expression can be fuzzy. For example, general plot ideas of a television show are not protected by copyright. Therefore, one court held that the weight-loss reality television show “The Biggest Loser” did not infringe the copyright of a treatment for a television show that had many similar elements to “The Biggest Loser.” Milano v. NBC Universal, Inc., 584 F.Supp.2d 1288 (C.D. Cal. 2008). However, the court in Metcalf v. Bocho, 294 F.3d 1069 (9th Cir. 2002) found that a jury could reasonably find copyright infringement between a treatment for a television show and an actual television show (“Hill Street Blues”) that shared many story elements but not much more than that. The court’s language in arriving at its conclusion shows how fuzzy the distinction between ideas and expression can be: “However, the presence of so many generic similarities and the common patterns in which they arise do help the Metcalfs satisfy the extrinsic test. The particular sequence in which an author strings a significant number of unprotectable elements can itself be a protectable element.” Id. at 1074.
Trade Secret Law
The nuanced (or convoluted) treatment of ideas permeates trade secret law. In California, the courts have bickered on the seeming basics and used head-scratching language.
The definition of “trade secret” under California law, which is broad, does not include “ideas,” but rather defined types of “information.” California Civil Code Section 3426.1(d) states, “Trade secret” means “information, including a formula, pattern, compilation, program, device, method, technique, or process, that [meets certain requirements].”
The court in Silvaco Data Systems v. Intel Corp., 184 Cal.App.4th 210, 220-221 (2010), stated that, “Trade secret law does not protect ideas as such….[T]he trade secret is not the idea or fact itself, but information tending to communicate (disclose) the idea or fact to another. Trade secret law, in short, protects only the right to control the dissemination of information.”
Then three years later, the court in Altavion, Inc. v. Konica Minolta Systems Laboratory, Inc., 226 Cal.App.4th 262-55 (2014), critiqued the analysis of Silvaco. Altavion stated, “In isolation, the statement ‘[t]rade secret law does not protect ideas as such’ [in Silvaco] is easily misunderstood. In fact, Silvaco plainly does not hold that secret ideas are not protectable under trade secret law….trade secret law protects the inventor’s right to control the dissemination of information ”—the information being the idea itself.” Altavion, 226 Cal.App,4th at 55-56 (certain citations and quotations omitted).