At what point legally does an idea go from something that any creative can use to being a piece of protectable intellectual property?
Granted, there are some ideas that aren’t created by anyone. They already exist– have to exist to be true to the genre. (This is called “scènes-à-faire” and we’ll go into this in depth in later columns.) For example, pirates go to sea on pirate ships, fly the Jolly Roger, have surly attitudes, pillage, plunder and say “Arrgh” all the time. Use of these ideas in a pirate movie are a given. They’re what make any movie a pirate movie and to leave them out would play real havoc with audience expectations. So these ideas are not protectable and are fair game to any pirate movie writer.
But when an idea gets very specific to a particular story or character, the use of that idea can rise to a level of protectablity, even reaching a court recognized version of copyright. What kind of idea can rise to this level? Well, it depends (you could see that coming, couldn’t you?) But when an idea associates itself strongly to a particular, recognizable and repeatable performance of that idea, then you shouldn’t be copying it. It’s the difference between dressing up as a generic pirate for Halloween or dressing up as Johnny Depp’s Captain Jack Sparrow. There is enough uniqueness in that performance, established by consistent, replicated performances through all the movies to establish a clear relationship and audience recognition factor. Even though all of the elements chosen to make up the look and character of Sparrow (sorry, that’s Captain Sparrow,) were chosen carefully from the scènes-à-faire of pirate lore, the specific choices and performance given create an indelible, memorable (and very likely protectable) original.
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