Ideas, Expressions, and Plots Author(s): ROGER A. SHINER Source: The Journal of Aesthetics and Art Criticism, Vol.

68, No. 4 (FALL 2010), pp. 401-405 Published by: Wiley on behalf of The American Society for Aesthetics Stable URL: http://www.jstor.org/stable/40929547 . Accessed: 01/04/2014 03:10
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Discussion

and Plots Ideas, Expressions,

In a recent to this Darren contribution journal, Hickoffered an ambitious that Hudson argument such as or of narrative works films, plays, plots novelsshouldbe qua plotsprotected by copyare should be protected because they right.1 They of an already work. distinct elements protected conclusion to be an important He takesthis one, notthesameas the sinceplotsare ontologically ifhis thelawpresently Thus, protects. expressions wehavereason tosaythat is successful, argument hisarguthelawought to be changed. Moreover, ifitis,because itshows would be successful, ment of art, that within theontology plotshavea disstatus. Thuswehavea serendipitinct ontological ofarthaving tousexample oftheontology signifThere is an issuehereof icance for doctrine. legal and"ought." howtotakethelanguage of'should' exIs it Hick'sviewthattheresources already can be law (relevant statutes ist in black-letter within for to bring so interpreted, plots example) and thatcourts havefailed copyright protection theblack-letter to see this? Or is ithisviewthat to accordcopyright law should be changed protection to plotssinceit now does not?I think and I continue on that his view is the latter, assumption. there is much in Hick'sessaythat is Although I shallargue that these ambitious correct, clearly claims arenotcorrect andinfact on misdepend both ofcopyright lawitself andof understandings howissues oftheontology ofartmight havesignificance outside aesthetics. In theonlysensein which itmatters for thelawwhether plotscan in be protected are alprinciple bycopyright, they in principle so protected of ready independently of issue the law's lack of Moreover, any ontology.

concern for theontological issueHickpresents is wellfounded. in copyright The central element law,as Hick is the distinction between rightly pointsout, be pro"ideas"and "expressions": ideas cannot canbe protected tected bycopyright; expressions Within 'ideas'and'exlaw, bycopyright. copyright areterms ofordinary that the language pressions' lawhasadopted for thelaw'sownpurposes: they are technical Theystandforthelelegalterms. that intellectual lawhasdegalconcepts property of"proto manage thedomain velopedin order useful the of science and arts, moting] progress andinvenfor limited times toauthors bysecuring tors theexclusive totheir writings right respective andfamiliar anddiscoveries," toquotethefamous 8 of theU.S. Constiwords of Article 1, Section in thelegalsense tution. Ideas and expressions are artifacts, creatures oflaw and legaldoctrine. Theseterms are notuniquein thisrespect. Any is a creature oflaw,evenifithas analegalterm Whenthecriminal discourse. loguesin ordinary orwhen lawspeaks of'murder' or'theft' employment lawspeaks or'equality,' of'harassment' they too use legalterms. In cases likethisof normativesignificance, we hopethat thelawaspires to, anddoes,track with itsdoctrines andconceptual distinctions thedoctrines andconcepvery closely tualdistinctions ofenlightened Butthe morality. law mayor maynotdo that, and it mayor may nottrack incopyright doctrine accurately anyintuitive distinction between ideasandexpressions that exists outside thelaw-inaesthetic discourse, say. As Hick,againrightly, out,thedistincpoints tionbetween ideas and expressions of ideas is nota bright-line distinction insofar as itconcerns artistic works. Actuallitigation of actualcases

TheJournal ofAesthetics andArtCriticism 68:4Fall2010 for Aesthetics 2010TheAmerican Society

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402 difficult. Whenwholepassagesare is often very has it is clearcopyright frequently reproduced, not onlythe idea but also the been infringed: are the same.But I do not infringe expression characas a central merely by having copyright a is baldwith whosmokes tera detective opium, As or writes mustache, againrightly, poetry. Hick, disthis demarcation the lawdealswith out, points Learned onJudge ina formulaic way, drawing pute inNichols? Handthere Hand'sdecision suggested scale": to quote a somewhat "sliding simplistic "at one end are plotsso impovHick'saccount, as ideas:at that erished indetail only they qualify as to qualify are plotsdetailed theother enough expressions" (p. 401). be operationalized thistestcannot Obviously, in anymeaningfully way:muchwill algorithmic to knowthedistinction abilities relyon courts' itsown whenthey see it,and thatis a factwith It is inHickletsthat source ofdiscomfort. go by. that Hand's test also suffers to his tegral argument from a "deeply theoretical" problem (p. 401).His ofthe a brief isthis. description Imagine argument orabstract work that isso general ofa literary plot anidea.Nowimagine as tobeonly Hand-like, that, more with is supplemented thisbaredescription we and moredetailuntilat some pointclearly than an idea. us an expression, rather havebefore As thedewe state this occurrence? How should the has it from being changed scription expands, of thedescription ofan idea to being description Or has theidea beingdescribed an expression? thatit is nowan itself becomecomplex enough Hick that If we as assumes, assume, expression? is a plot, then wehavea described thething being be in principle plotsshould difficulty. Intuitively, be.Ifthey Butthey cannot bycopyright. protected notprowill and so be aretoosparse, ideas, they will ifthey aretoorich, tected they bycopyright; beandso protected be expressions, bycopyright notplots. So itwould areexpressions, causethey be procannot that seem, counterintuitively, plots The options hereare,urges tected bycopyright. result counterintuitive to accept this Hick,either ideas Hand'stest for ortoabandon distinguishing latter the Hick defends andexpressions (p. 402). option. inaltogether off tomeHickheads Hereitseems in itis thedirection thewrong direction, although ofart theontology hisattempt to go from which sendshim.He says, to legaldoctrine reasonably line" that on thefaceofitthe"no bright enough,

andArtCriticism ofAesthetics TheJournal ofideasandexpresfor Hand'saccount problem satisfactoifwe can define sionswillbe tractable he and and 'idea' saysthat legal 'expression,' rily comesup to do this. He then scholars havetried He claimsthat, with hisowndefinitions. having are itisclear that ideasandexpressions donethat, Thushe accuses kindsof entities. twodifferent sinceit Hand of "a sortofontological alchemy," to an implication ofHand'sapproach is,allegedly, thatan idea can theidea-expression distinction outof become an expression bythefilling simply "It is a of the idea: theoriginal strange description ofan idea claimindeedto saythat a description ofan expression a description canbecome simply more detail tothedescription" (p. 402). byadding and thisis notin theleastbitstrange, However, ofonarenotguilty ofanykind Handandhistest that assumes Hickmistakenly tological alchemy. are about 'idea' and 'expression' thelegalterms in therealworld that we can plauthoseentities But they as ideas and sibly identify expressions. are not,anymorethanthelegal term 'malice,' that Abelhas is aboutthepattern ofbehavior say, toward Bakerat department beenlately showing no "about" to legaldiscourse: There is meetings. that is applied technical discourse it is a created to people, of thelegalsystem in theinstitutions intherealworld their andtheir situations actions, for various in order to construct thosesituations to themainsocialpurposes deemedimportant thisor The law protects tenance of sociallife.3 is this that that bysaying description description an is of ofan idea,orthat expression. description candidate The lawdoes notfirst descripclassify in some ontologitionsas ideas or expressions detercouldbe independently cal sense, as ifthat basedon decision then mined andtheprotection as though sound that determination. Thelawmay butit is justthelegal thatis whatis happening, idiom. Whatthenof plotsand theissueof whether be protected can in principle bycopyright? they to say aboutwhatplots Hick has useful things and he argues are and howthey work, plausibly ideas arenotthesameas either that enough plots those has defined inthe that he orexpressions way as a result Buthisconclusion terms (pp.403-405). that canbe protected ofhisanalysis bycopyplots isnot work ofanoriginal elements as original right itis.He that he thinks newsthat theremarkable theissueas though now, copyright right presents as butonly lawis notprotecting expressions plots

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Discussion opposed to ideas, and that he, Hick, has shown fromontologythatplots insteadby an argument as wellas expresshouldbe protected bycopyright sions.However,he securesthisresult onlybecause defined'expression'and 'plot' so that he has first willrefer in thenatureofthecase thesetwoterms kindsofentity. Fromthepointofview to different thatis as may be. of the philosophyof criticism, criticism would be impoverished Indeed, literary But it does ifit did nothave thesetwo categories. not follow fromthe importanceof the concept thatthereis pointto intellecof plot to criticism law's containingas one of its key tual property doctrinethe conceptof legal termsforcopyright 'plot.' imthatthepractical Hick wisely acknowledges as a loose law of his view is left for the plications end- no mean loose end, as thelaw is a primedothisloose He finesses mainofpractical reasoning. thatit is an issue of the enforceend by declaring nottheissue of "whatitmeans mentofcopyright, fora plot to be copyrightable" (p. 405). This is, What it means fora however,a false distinction. in lawjust is thequestion plot to be copyrightable of how theconceptof plotcan be, or would be, or willbe used in copyright Legal concepts litigation. are practicalconcepts:theyare not abstractconand whose use cepts thatexistpriorto litigation take thisor thatform. Appellate mayin litigation courts-especiallysupremecourts-may speak as ofan eterthecontents though theyare describing nal "jurists'heaven." But theyare not, and I do thatifasked,theywould themselves notthink say otherwise. They are simplyenactingmomentsin of governing humanconthe ongoingenterprise laws. ductthrough So does it make practicalsense to individuate plots as itemsthatcan be protectedby copyright in addition to expressions?No. As Hick, again rightly, pointsout: "How, forexample,would we go about comparingplots of works,given thata plot is not the sort of thingthat can simplybe displayed?"(p. 405)- a questionthatseems to me to be no easier a task to answerthan whethera is a description of an idea or certaindescription The difficulty is therequirement ofan expression. a work must that,to be protectedby copyright, be "fixed in a tangible medium of expression" (Hick, p. 400, quoting the relevantU.S. federal ofthepublishThe standard conventions statute). or industries make it easy to detering filmmaking minewhatcountsas "fixedin a tangiblemedium

403 ofexpression" fornovels, nonfiction, poetry, plays, whatis promovies,and so on. Crudelyspeaking, is whatis betweenthe covers tectedby copyright of the book. But it is unclear how this requirementoffixity can be applied to plots.The plotofa novel is embedded in the fixedtextin such a way thatit is an act of interpretation, not observation, to abstractthe plot fromthe fixedtext.It is clear to in the front whatthe familiar symbolrefers matterto a book. It would not be clear what the to ifit were to be applied to a plot. symbolrefers and that Now,it looks as ifit could be otherwise, an authormight a plotand make money copyright itsuse to others. Afterall, children from licensing delightin seeing over and over again versionsof familiar plots,and all of us enjoy seeingnew performances of familiar plot plays and how familiar transitions are handledin a new production. This, fixity: though,is a mental or sociopsychological and as such are the plots are culturalarchetypes, as ideas and so notapt morelikelyto be classified to be protected by copyright. to 'plot' beI can see, moreover, a disadvantage ing a judiciable termthat 'idea' and 'expression' as I have said, do nothave. 'Idea' and 'expression,' and used bycourts for are legal terms, constructed and legal purposes.So if anyone can confidently it will be membersof use those terms, accurately the legal profession.'Plot,' however,is a critic's ifHick's suggestion takes term.One can imagine, start to be called in to giveexpert hold,thatcritics in copyright cases as to the plot of this testimony artwork. But plotsare poor canor thatnarrative There are no hard didates for experttestimony. standardsof expertise,nor of hard evidence as to the factsof the matter.Expert testimony by runs into enough and psychiatrists psychologists dedifficulties when the mentalstate of criminal a is at issue,and thatat least is ostensibly fendants I do not denythatwe form of scientific expertise. thinkof one criticas a bettercriticthananother, and we may well be correctin doing so. I assert only that this confidencein our abilityto judge in criticism willtransfer poorlyto courts expertise of law. The onlyexpertdecisionneeded is thatof thecourt,as the decisionis a legal decision.4 The introduction ofplotsas well as expressions as beneficiaries ofcopyright constitutes protection an unnecessaryredundancy. There is a passage in Hand's opinion in Nichols wherehe does talk about plots.He refers to a priorcase in whichthe Second Circuit(the courtto whichhe belonged)

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404 "foundthatthe plot of the second play was too different to infringe He remarks that [copyright]." "we do not doubt thattwo playsmaycorrespond in plot closelyenoughforinfringement." He says thatthesame goes forthecharacters in a play:he case in whichit would be imaginesa hypothetical held that a supposed copyright in Twelfth Night would be infringed the by presenceof characters similarto Sir Toby Belch or Malvolio, extremely similar althoughthe presenceof characters fairly to the two of them would not infringe. All this could be true "quite independently of the 'plot' proper." Hand thus shows himselfwell able to deploy the concept of a plot in reasoningabout of copyright, but as a part of the infringement distinction betweenidea and exgeneraldoctrinal Hand uses the same way as we all pression. 'plot' use it,in itsordinary meaning.He uses it as a tool in the determination of infringement, just as he uses 'character,' that 'stage,'and othervocabulary is onlyto be expectedin litigation about copyright in relationto plays. One of Hick's arguments forcopyright protectionforplotsis thatcopyright law alreadyprotects melodies as partsof musical works.The melody seems to stand in a relationto the musicalwork as a whole analogous to the relation in which the plot stands to the literary work as a whole. So why not protectplots, then? This argument misunderstands law.Copyright law procopyright tectsmelodiesbecause it regardsthemas expressions in thelegal sense.A composercannotclaim fora note,or a chord:those copyright protection are legally ideas, buildingblocks of knowledge. law protects melodiesas partofmusical Copyright worksin thesense thatcourtsrecognizesimilarity of melodyas a stronggroundforidentity of exthe pression,and thusfora breach of copyright'substantial test to which Hick has alsimilarity' 5 law readyreferred (p. 400). Likewise,copyright would already protectthe plot of a work in the sense thatsimilarity of plot would be regardedas thebasis forsimilarity of expression, and thusfor a potentialbreachof copyright. What would it be for Hick to want to intend a stronger thesisthan thisby the idea thatplots deserveprotection as elementsof an alreadyprotectedwork?I can see twooptions:thatcopyright law should protectplots as well as expressions, or thatcopyright law should protectplots instead For the first thesisto be successof expressions. a situation where ful,we would have to construct

The Journal of Aestheticsand Art Criticism the plot was protectedwhile the work of which the plot was a part was not. But thatis an incoherent law currently optionas copyright operates. Given how substantial a partof a narrative work its plot is, a courtis legallyunable to declare the plot of a play to be protectedwhile at the same timeto hold thattheworkofwhichitis theplot is different from an allegedlycopyrightsufficiently violatingrival play with the same plot that the rivalplay does not in factbreachcopyright. That is not how the idea-expressiondistinction works. The second option,however, is open to Hick, and be his real that the law should dump may goalthe idea-expression distinction. While the proposal is worth entertaining, anydefenseofitwould have to go far beyond anything urged in Hick's article. Hick says at thebeginning of his articlethathe proposes to show thata philosophicaldiscussion of the objects of copyright has the capacityto inand ideallyshould inform, form, legal discussion of thenatureof copyright. I have triedto show in thisdiscussionthatthishope is not so muchfrustratedon itsown terms as itis ill formed. Yes, itis the task of philosophers of art to discussthe objects of art,to discuss the ontologyof art. Such philosophersare welcome to consider whether plots as essential featuresof narrativeartworks should be acknowledgedas part of our ontology ofartworks. And certainly iftheconclusionofthis discussionis thattheyshould not be, indeed objection could be raised ifcourtsdecidingcases in intellectual law decided to make 'plot' property a key termof copyright law. But the objections could onlybe practical, notontological. As forthe thatcopyright law shouldprotect thought plotsas well as expressions, again the objectionsto that are practicalones,and their merits are suggestion forcourtsand legislatures themselves to decide: theforce oftheobjectionscannotbe preempted by theresults of ontologicalinquiry byphilosophers. It misunderstands the natureof legal discourseto it has suppose exposure to the resultsof philosophical ontology.Hand's test is indeed not an fordetermining of copyalgorithm infringement but thenitwas neversupposed to be one. It right, givesroughguidanceto courtsthatare inevitably going to have to take a decision tailored to the of thefactsituation beforethem.Underspecifics stood thatway,it has providedcourtswithsuch guidance for almost seventyyears; it may creak fromtime to time,and fromtime to time need

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Discussion withbalingwire.But it is hard to denythe fixing that"themostgenintuitive appeal ofthethought eral statement of whatthe play is about" (Hand) and is an idea not meriting copyright protection, thatas the materialcommonto the originalplay, say,and the allegedlyplagiarizing play increases in size,we getevernearerto thepointwhereprois not dislodged,in tectionkicksin. This intuition theontology of byarguments concerning myview, artworks.
ROGER A. SHINER of Philosophy Department of British Columbia University British Canada V1V 1V7 Columbia, Okanagan, internet:roger.shiner@ubc.ca
I. POINTS OF CONFUSION

405

1. DarrenHudson Hick,"MakingSense of the Copyof Plots: A Case Studyin the Ontologyof rightability 67 (2009): andArtCriticism Art,"TheJournal ofAesthetics willbe embedded article Further references tothis 399-407. inthetext. v.Universal 45F.2dll9 (1930). 2. Nichols Pictures Corp., 'construct' useoftheword 3. I should notbe taken bythis of philosophical the moreexoticforms to be sponsoring oflaw.It is trueto saythat abouttherationality skepticism even if is constructed by the legal system, legal doctrine and even ifin is in itself rational sucha construct entirely on to an independent moral itsentirety itmapssemantically reality. in Nicholsthat Hand s opinion 4. In fact, itseemsfrom inthecourt as totheanalysis waspresented testimony expert Hand disoftheplotsofthecompeting andstructure plays. noththetestimony comments that "contributjed] dainfully the evidenceis all heardafter cannotbe better ingwhich mattheidea that thesubject Thatis,he rejects submitted." is one amenable to expert terofthedispute testimony. Three 5. See,for Bolton, BoysMusicv.Michael example, 212F.3d477 (USCA 9thCir.2000).

Ideas: A Replyto Roger A. Shiner Expressing to engage I am pleased to have thisopportunity and aestheticsand am on mattersof copyright it. As I to Professor Shinerforproviding grateful in in the American Soout a recent piece pointed has been Newsletter, ciety forAesthetics copyright overlooked as a topic in philosophisurprisingly cal aestheticsand deservesmuchmore attention from ofartthanithas so fargained.1 philosophers more than However,it is perhapsthissentiment else thatservesto drawShiner'sfervor. anything

Before movingon to what I take to be the more issues in Shiner's discussion,I want interesting to take a moment to clear up some points of confusion. Shinertakes myargument to be First, the following: ideas nor roughly plots are neither expressions,but, being distinctelements of alreadyprotectedworks, plots should be thusprotectedby copyright.2 Much of Shiner'sobjections are directed at thisunderstanding ofmyargument. this as a matter is not of However, myargumentindeed. law,thiswould be a verypoor argument, Not all distinct elementsofcopyrighted worksare works are comliterary protectedby copyright: but individual wordsare not proposed of words, tected by copyright, and paintingsare made up of shapes and colors,but one cannot own these either.Rather, for some element of a work to merit copyright protection,that element itself mustpass theminimum bar forcopyrightabilitythatelementmustitself qualamongotherthings, Shinerrightly points ifyas an originalexpression. forcopyout thatthisis whymelodiesmayqualify I and the same, argue, is true rightprotection, of plots.3Like melodies,I contendthatplots are in thattheyare unusual expressions expressionsneither immediately apparentnorself-supporting, What do they exbut expressionsnevertheless. I is that a literary What plot exsuggest press? pressesa chronology.4 In reconstructing Shinerrestates myargument, Learned Hand's "patmyinitial objectiontoJudge terntest" as follows:"Intuitively, plots should be But theycanin principle by copyright. protected not be. If theyare too sparse,theywill be ideas, iftheyare too and so not protected by copyright; so protected will be and rich,they expressions, are because they expressions,not by copyright plots."5 Shinerhas the first part of myobjectionright, but not the second. To correct:if we were to acbecept, as Hand suggests,that the difference is a mattweenplot-as-idea and plot-as-expression terof degree of detail,thenan impoverished plot Howis only an idea, and so not copyrightable. ever, if by adding detail we reach a richenough thenthe idea has plot to qualifyas an expression, and so theonlyidea thisexbecomean expression, be said to expressis itself. pressioncan reasonably As such,it seems reasonable to suggest, idea and willhave "merged,"and as a matter of expression

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