Distinguishing Literary Ideas and Expressions with Elements of Alternate Worlds

– Joshua Jeng

Copying creative works is bad. Creating original works is good. But what happens when a new work is inspired by a preexisting work? In copyright law, that is called a derivative work and is ill-defined in the area, especially pertaining to literary works. To determine if a derivative work is a copy or its own original work, the analysis turns on whether the work was “based on” another. To answer this question, courts turn to the classic copyright distinction of an idea versus an expression, asking if the “total concept and feel” of the original remained in the derivative work. If it does, the author is not entitled to copyright protection and owes the original author royalties, if not, it is a new work on its own. In his article, Joshua Jeng challenges this test, instead suggesting that for literary works, the court should look at the original work as having built a world, comprised of lots of smaller components, like characters, setting, era, etc. From there, a court would find infringement when the borrowed elements can be identified as an element of the original work’s world. Jeng’s idea was first introduced in the science fiction world and is well supported by artists and scholars. Authors support it because it would address copying concerns more specifically for the literary industry, and appears to provide more support for original creators. On the other hand, overprotection of ideas can have a chilling effect on creation. Jeng’s article properly addresses these concerns and provides an enticing new idea for considering derivative works.

Abstract Written by Ava Gray Goble, 2018