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Unpublished Paper
Literature’s Idea-Expression Distinction: Drawing a Line with Distinctive Elements of Alternate Worlds
ExpressO (2015)
  • Joshua Jeng
The line between ideas and expressions in copyright law has never been particularly clear. We want to protect what authors create so that they are motivated to create more, but we want broad concepts to remain free so that others may produce even more works. The distinction concept and an author's take on a concept has always been very difficult to define, even among legal scholars, and has largely remained misunderstood by the average author. However, as derivative works increase in prevalence and economic importance, the need for workable framework for understanding copyright that the lay author can understand is more important than ever. This paper offers a potential framework. Rather than focusing on how literary works may be similar in a broad sense (as the total concept and feel test does), the proposed analysis instead focuses on supposedly infringed aspects of each work and ask this question: is what a later author supposedly took an element that is distinct to the original author’s literary “world"? The idea rests on the premise that authors must construct coherent worlds with internal consistency, a process that creates "parallel worlds" that are similar but different from one another. Because consistency requires adherence to concepts that make sense, two authors may end up with similar works because they share common elements (real world settings, plots, and archetype characters, and so on). However, each author also sets his or her world apart with a unique take on the various concepts that - if done well - should be specifically traceable to that author's work. It is this second part, what the author specifically creates in the establishment of his or her world, that copyright law should be designed to protect because it is the individual expression of an idea. Through an analysis of Stephanie Meyers' Twilight novel and E.L James' 50 Shades of Grey, this paper elaborates on the framework provided above, how current law implicitly supports its use, and how it meshes with literary theory to create a system that reflects both the law and an author's implicit motivations. The end result should be an intuitive system that non-lawyers can understand and use in the modern day.
  • idea-expression,
  • copyright,
  • total concept and feel,
  • substantial similarity,
  • literature,
  • movies,
  • derivative works,
  • infringement,
  • fair use
Publication Date
August 11, 2015
Citation Information
Joshua Jeng. "Literature’s Idea-Expression Distinction: Drawing a Line with Distinctive Elements of Alternate Worlds" ExpressO (2015)
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