Vanderbilt Journal of Entertainment & Technology Law

First Page



It is a long-standing and general rule that ideas are "free as the air" as Justice Brandeis eloquently stated in the dissent to the seminal case International News Service v. Associated Press.' This axiom of copyright law expresses the idea that copyright does not protect ideas but only protects the expression of ideas in a work. The distinction between unprotected ideas and protected expression is often referred to as the idea-expression dichotomy...

The principle of the idea-expression dichotomy was initially stated in Baker v. Selden, and later cases further articulated this principle, so that it has become one of the central tenets of copyright. This well-established rule was adopted in section 102(b) of the 1976 Copyright Act, which provides that "In no case does copyright protection ... extend to any idea ...", Ideas in the strictest sense thus live in the shadow of copyright law, which persistently refuses to award any exclusive right to anything but an original expression of ideas.

This absence of protection can be problematic in light of the fact that some ideas, though undeveloped, possess value independent from their future expression...

Thus, state contract law seems adequate to protect idea-creators where copyright law gives no protection. However, copyright law throws a wrench in the works with its preemption doctrine in section 301 of the 1976 Copyright Act, which extended federal copyright protection to all works fixed in a tangible medium of expression and eliminated state common law copyright protection for fixed, but unpublished works.' Section 301 was an attempt by Congress to devise a uniform preemption approach that would produce clear and consistent results. The question then becomes: to what extent does section 301 apply to the remedies granted to an idea creator pursuant to an idea submission contract existing under state law?

In an attempt to answer this question, Part II of this article will present the different types of idea-submission contracts and the legal requirements placed on their enforcement, depending on the jurisdiction, arguing in favor of the broadest enforcement of idea-submission contracts. Part III will address the issue of express preemption, analyzing the interplay between idea-submission contracts and the requirements stated by Section 301. Part IV will turn to an examination of the probability of preemption of idea-submission contract claims under the broader ground of implied preemption, dictated by the Constitution's Supremacy Clause.