A man in a cowboy hat walks up to a bar and orders a whiskey.
People are gathered around a table playing poker. A fight breaks out.

I suspect you've seen this one before, maybe several times in several different movies. The scene is from the short film Cripple Creek Bar-Room Scene by Thomas Edison, shot in 1899 and often credited as the first western. Rather, the scene is the film; it's less than a minute long. Four years later one of Edison's cameramen, Edwin S. Porter, would create the first 'real' western. In fourteen scenes and about twelve minutes, The Great Train Robbery tells the story of the Hole in the Wall gang robbing the No. 3 train on the Union Pacific line. This was the first Butch Cassidy movie and invented many of the conventions that still dominate western filmmaking.

The history of western filmmaking seems like an extended set of variations on the themes provided by Edison and Porter. It is almost impossible to make a western without in some way evoking these early films. That's what makes a genre a genre; it's simply a set of conventions and ideas that one recognizes from earlier work. New work is built on recognizable elements constructing a cohesive culture around some fairly simple ideas. One might think that today's intellectual property laws and our love of litigation would dampen this kind of creativity by granting the initial creator of an idea the power to prevent further explorations of an entire genre. But that's not how copyright works. Copyright doesn't protect ideas, it protects tangible expressions of ideas.

So now the question of the day:

Is it possible to create a work of art about sadomasochism that doesn't involve latex masks, ball-gags, and men on leashes? At the risk of revealing too much of my personal life, I have to say no. Famed fashion photographer David LaChapelle disagrees and is suing pop star Rihanna over her recent video for the song S&M, (examples here) which LaChapelle says copies his work a little too faithfully.

The influence is indisputable, but is it a copyright violation? I don't know, but I'll be saying a little prayer every night that this isn't settled, and ends up in front of a judge so we can read the various arguments and know how the court sees this. The final opinion has the potential to be one of the most entertaining court documents ever written. So please Mr. LaChapelle and Ms. Rihanna, I beg you in the name of legal entertainment, don't settle this. In the meantime here are a couple ideas from the annals of copyright case history to help us enjoy this little squabble.

Idea vs. Expression

In 1859 Charles Selden wrote a book about a new system of bookkeeping called Selden's Condensed Ledger, or Book-keeping Simplified. Although the ideas in the book were novel, the book itself was a commercial failure. Eight years later W.C.M Baker wrote a different book describing more or less the same system, which became a hit. Selden's widow sued for copyright infringement and the case ended up in the Supreme Court in 1880 where Baker prevailed. The court found that while copyright protected the book Selden wrote, it did not give him exclusive license to the ideas the book described. No matter how creative and novel Selden's idea may have been, only his description of the idea as expressed in his book is protected:

The description of the art in a book, though entitled to the benefit of copyright, lays no foundation for an exclusive claim to the art itself. The object of the one is explanation; the object of the other is use. The former may be secured by copyright. The latter can only be secured, if it can be secured at all, by letters-patent.

—Baker v. Seldon

In other words, Selden should have patented the idea. This is why cookbooks are protected under copyright but recipes are not and why landscape photographers can continue to take the same shot of delicate arch over and over again.

Scène à faire

We expect a western film to include gunfights, bars with upstair brothels, an occasional train robbery, and lots of horses. The courts have historically prevented the creator of a work from monopolizing the conventions of a genre under the principle of scène à fair (scenes that must be made). If you set out to write a film about New York police for instance, there will be prostitutes and rats, they go with the territory. When somebody else comes along and writes a New York police story that also features prostitutes and rats, copyright will offer you no recourse because you simply can't write about New York without prostitutes and rats. At least that's the opinion of the 2nd Circuit Court of Appeals in the case frequently cited in reference to scène à faire where Thomas Walker, author of the book Fort Apache sued the makers of the film Fort Apache: The Bronx and lost.

…both the book and the film begin with the murder of a black and a white policeman with a handgun at close range; both depict cockfights, drunks, stripped cars, prostitutes and rats; both feature as central characters third- or fourth-generation Irish policemen who live in Queens and frequently drink; both show disgruntled, demoralized police officers and unsuccessful foot chases of fleeing criminals.

Elements such as drunks, prostitutes, vermin and derelict cars would appear in any realistic work about the work of policemen in the South Bronx. These similarities therefore are unprotectible as "scenes a faire," that is, scenes that necessarily result from the choice of a setting or situation.

Foot chases and the morale problems of policemen, not to mention the familiar figure of the Irish cop, are venerable and often-recurring themes of police fiction. As such, they are not copyrightable except to the extent they are given unique — and therefore protectible — expression in an original creation.

—Walker v. Time Life Films

If we are lucky enough to see this case in front of a judge, we'll get to hear exactly which part of David LaChapelle's colorful and crazy world is protected by copyright and whether, in the distinguished opinion of the court, men on leashes and women in latex necessarily result from the choice of setting. I can't wait.