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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