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When is an idea protectable? This question is front-and-centre for many entrepreneurs. When can they discuss their business idea, invention, or brilliant screenplay?

This story relates to the protectability of ideas under the law of copyright. Basically, there is no protection under copyright law for an idea itself, only the particular form and expression of that idea. This was illustrated last week in Elijah Schkeiban v. James Cameron et al (Case No. 2:12-cv-00636, California Central District Court), where the plaintiff claimed that Mr. Cameron’s blockbuster Avatar film infringed copyright in Elijah Schkeiban’s screenplay entitled “Bats and Butterflies”.  In this case, the plaintiff alleged that certain character traits and plot elements were copied by Cameron. These broad elements of a story - good guys vs. bad guys, or flawed protagonists - are precisely the things that are not protectable. The case was dismissed.

It is important to note that courts will review elements of expression such as plot, themes, dialogue, mood, settings and characters, to determine if infringement occurs.

Compare this to earlier decisions that we reviewed here: (Copyright: Apps and APIs; Tetris Holding LLC v. Xio Interactive, Inc.) in which the court decided that the look-alike game Mino did infringe the protectable “look and feel” of Tetris; also see Dath v. Sony Computer Entertainment America Inc., where the US Ninth Circuit Court of Appeals upheld the lower-court decision in a copyright infringement case involving the Sony PS2 and PSP title “God of War”. The plaintiffs alleged that Sony infringed copyright in their written works about war between Sparta and Athens. No infringement was found in that case. (Reviewed in App Law Round-Up.)

Want to know who James Cameron really copied? Go see Fern Gully.

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