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Copyright: The Idea Can Be Copied, Not the Expression

A core precept of copyright law is that ideas are not protectable.What is protected is the creative and particular way that idea is expressed.Someone wanting to create a new version of an existing work must be certain to copy only the non-protectable elements.A recent case concerning a Super Bowl advertisement demonstrates that an expression is how the work handles the concept, feel, setting, themes, characters, pace and sequence.The infringement occurs if the copy portrays those elements in a way substantially similar to the original.Betty, Inc. v. Pepsico, Inc. found that Betty’s pitch of the original ad was darker and moodier than what Pepsi ultimately used; the music genre used was different; one set was in a warehouse, the other in three brightly lit rooms; one transition of scenes focused on musical genres, the other on passing decades; and the original pitch suggested multiple singers, while Pepsi’s final ad used only one.It is specific differences like these in the expression that protect a new work from being infringing, even though the idea of “passing through time” was the same in both.See the resulting ad here.

Ned T. Himmelrich
410-576-4171 • nhimmelrich@gfrlaw.com