Hi Phil,
As by now you know, this is a tricky subject and I fear it will not be possible to give a definitive answer or a set of rules which you can apply to all your designs. The reason for this is that the law develops over time. As you have discovered from your research, a decision in a case which appears to clarify a point of law can be reversed, either on appeal, or by a later case where the courts either develop new tests or interpret the law in a different way. There are numerous examples of case law appearing to contradict other case law decisions. The reason generally is that the facts in the two cases were different and required a different assessment by the court.
You asked me to expand a little on the ideas versus expression dichotomy. I won't cover the trade mark law or passing-off here as they both use different approaches to determine whether infringement has occurred or if an act amounts to passing-off.
So this is just about copyright. Or more specifically about the idea versus the expression. It is well established in all jurisdictions that an idea or a fact cannot be protected by copyright, and that until an idea has been fixed in permanent manner copyright does to come into play. So a speech made without a script or notes will ordinarily not be protected by copyright. But if a shorthand writer in the audience or a person with a video camera or tape recorder records the words spoken, then copyright springs into action. The speech may be on the economy, full of facts and figures, but the way in which the speaker expresses himself, by the choice of words or the eloquence of his delivery, or the metaphors he uses to illustrate his concepts are the essence of his speech which differentiate his speech on the subject from another speaker on substantially the same subject.
In practice of course the boundary between the two is rarely easy to delineate. It is worth noting that this is an area in which US law has gone much further we in Europe have done in blurring the distinction, but in order to keep this as short as possible I will only highlight the more glaring differences here. It is worth analysing what the courts in the UK and Europe consider to be the test for a work to be subject to copyright in the first place. The UK Act (CDPA 1988) speaks of 'original' works, and this used to be interpreted to mean the creative product originating from a human mind which does not copy some other work. But recent decisions (notably Infopaq) in the Court of Justice of the European Union have moved the jurisprudence on, such that a work which expresses something of the personality of the author is now the favoured test. This is slightly narrower than the previous test so that it tends to exclude something which has been unconsciously regurgitated or is so commonplace as to be banal, unless the new version exhibits significant additional and demonstrable creativity on the part of the later author. So how does this help define the boundary between the idea and the expression? Well the more 'original' content there is in a work, the more this will be 'expression'; to give an example, a novel in which the writer invents the plot, the characters and determines the pace of the writing, will contain a large proportion of expression even though the idea of, say, a love affair between two people, which is behind the novel is very commonplace. On the other hand a history of the Tudors will inevitably be based on historical facts and various source documents, and so is likely to have a much smaller component of expression which is unique to the author. Now in both cases, verbatim copying would infringe the copyright of the original author, but in the second case, a closer re-telling of the facts would be much more acceptable than would be the case with the novel.
The same holds true for films and TV programs. US jurisprudence specifically excludes some elements such as stock characters (for instance, the bad guy dressed in black or the blonde air-head) or scenes which are necessary to a story of that type (known as the scènes à faire doctrine). But on the other hand the US courts tend to provide far greater protection to those characters and characterisation which are distinct and well-formed. For example, very recently a
court in California has ruled (pdf) that the Batmobile is a 'character' and protected by copyright. If you want to go more deeply into the US approach to protecting characters and plots, take a look at [url=thttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1839361]this paper[/url] which I recommended in another thread recently). I think it highly unlikely that a UK court would ever goes so far as to say Chitty Chitty Bang Bang was a character, and still less that it was worthy of copyright protection on its own. As a part of a book or film, it might be protected because it amounts to being the substantial part of story, but that is a different measurement. This leads on to the relationship between the expression and the test for substantiality. The UK courts tend to take a more overall view of the work when deciding such things, looking at how substantial is the part or element which is alleged to have been infringed. This is invariably done on a qualitative basis and not a quantitative one. So in the case of a film, this test would tend to focus on the main plot, the main characters, the more memorable cinematography and so on - the things which capture the essence of the film or TV programme. On that basis I would take the view that using the name of the USCSS Nostromo would not be a substantial part and so not infringe. But interestingly I also took the view, in
another thread about tee shirts, that the half-buried Statue of Liberty which featured in the film Planet of the Apes was similarly insufficiently substantial, but Typonaut disagreed with me (which is not unusual). Which really goes to show how subjective some of these issues are.
Another example here might be the concept of a game show. The overall idea of say
Who wants to be a Millionaire is not the asking of questions which if the contestant gets them right, they win more money, or the fact that at certain points the contestant has to decide whether quit while they are winning or go for the next level and possibly forfeit everything - both of those elements have been found in previous game shows, but the uniqueness of the concept lies in details such as the way in which the compère builds up the tension, the computer graphics, the audience in the round and so on. In other words the expression floats above the idea, such that other game shows (eg
Play Your Cards Right) can use some of the underlying ideas, but express them in an entirely different way and so do not infringe the Millionaire format (which is now owned by the Sony Corporation).
Typonaut has mentioned Designer's Guild as an important decision which examined the idea / expression issue. The Red Bus case is also interesting, not because it is a precedent for the courts- it isn't - but because it represents the thinking of younger justices, such as His Honour Judge Colin Birss, who will no doubt be influential in many future IP decisions in the High Court, just as in his day Laddie J was influential, even though his decision in the Arsenal FC v Reed case was overturned by the Court of Appeal.
Hugh Laddie went on to become a highly respected academic and co-author of one of the
seminal works on copyright.
I need to find an avenue of attack that increases our portfolio instead of reducing it soon or I'll get lynched by our designers.