Undue Multiplication of Doctrine in Copyright
Samson Vermont

ABSTRACT
Many copyright doctrines can be boiled down to an “avoidability principle.”  The avoidability principle is that copyright only protects subject matter that independent creators will avoid creating (“evitable” subject matter) and that honest creators can avoid copying (“dispensable” subject matter). This principle unifies copyright’s many limiting doctrines, including the idea/expression dichotomy, fact/expression dichotomy, and useful article doctrine. This principle also illuminates the flaws in the provisions of the Copyright Act that relate to the limiting doctrines, including 17 USC 102(b) (which represents a misguided attempt to codify limiting doctrines), 17 USC 101 (which recites an incoherent “separability test” for determining when copyright protects useful articles), and 17 USC 102(a)(8) (which represents a futile effort to quarantine architectural works from the confusion surrounding the separability test). 
More surprisingly, the avoidability principle swallows a purportedly fundamental prerequisite of copyright protection: creativity.  Creativity is a proxy for evitability (the opposite of inevitability).  A work is creative insofar as its form and substance were not dictated by constraints external to the work’s creator. If the work was heavily dictated by constraints external to its creator – if the work was uncreative – those same constraints may likewise dictate the work of another creator such that another creator could independently create a very similar work.  Hence an uncreative work tends not to be evitable and thus tends not to be avoidable.  The exception occurs when the uncreative work was dictated by external constraints that were transient or otherwise unlikely to dictate the work of other creators.  For example, copyright robustly protects camera footage of events captured by bystanders who happened to be at the right place and time – despite the essentially uncreative nature of the footage. 
A creative work tends to be evitable and thus tends to be avoidable.  The exception occurs when a creative work becomes indispensable, i.e., when the creative work itself becomes an external constraint on other creators’ work by becoming an industry standard or by otherwise achieving dominance through path dependence, network effects or adoption into law.  In such a case, honest creators cannot feasibly avoid the plaintiff’s creative work, and courts will use a limiting doctrine to let honest creators escape liability, no matter how creative the plaintiff’s work.  
The avoidability principle also sheds light on the line between patent and copyright.  The line is not between subject matter that has practical utility and subject matter that lacks it. Instead the line is between subject matter that is unavoidable and subject matter that is avoidable.  Patentable inventions are relatively inevitable because they are heavily dictated by external constraints, namely, the laws of physics, the requisites of safety and efficiency, and specific human needs. These external constraints channel independent inventors toward the same inventions. There are only a few feasible ways, for example, to make an airplane fly. Hence it is not unlikely that different inventors would independently invent the same airplane design. For similar reasons, patentable inventions tend to be relatively indispensable.
Copyrightable works are relatively evitable and dispensable, because very different copyrightable works achieve the same basic effects. For example, myriad existing comedies achieve (and innumerable yet-to-be-written comedies can achieve) the same basic effect that comedies are supposed to achieve (laughter). Hence different comedic writers are very unlikely to independently write the same comedy, and it is very unlikely that any particular comedy will become indispensable.

I. Summary, with Brief Application to Cases and Hypotheticals
Copyright only protects avoidable works.  Avoidable works are both evitable (the opposite of inevitable) and dispensable (the opposite of indispensable). A work that lacks either evitability or dispensability is unavoidable and thus unprotectable.
A work is evitable to the extent it was created free of external constraints.  The freer plaintiff's work was of external constraints, the less likely that others will independently create works very similar to plaintiff's. In contrast, if plaintiff's work was heavily dictated by external constraints, those same external constraints may dictate others’ work in the same way, so that others independently create works very similar to plaintiff’s. 
An avoidable work is dispensable as well as evitable.  A dispensable work is a work that honest creators need not copy to efficiently pursue a socially beneficial enterprise.  Most evitable works are also dispensable.  Some evitable works, however, become indispensable by achieving dominance for reasons not wholly due to their substantive merit or to their creators’ contribution. Honest creators may not be able to avoid copying these dominant works if they are to efficiently pursue a socially beneficial enterprise. Section III includes an example of a case in which an evitable work achieved dominance and became indispensable.  The remainder of the current section focuses on evitability.
Compare a list of the 100 best movies with an accurate list of the 100 most financially successful movies. Copyright protects only the first list. The reason is that only the first list would be avoided by someone who independently made their own list of the 100 best movies.  If I make a list of what I personally believe are the 100 best movies, and you independently make a list of what you personally believe are the 100 best movies, our lists will likely differ markedly. Each list of the 100 best movies is evitable – each is dictated by our own peculiarities, not by external constraints that drive us to converge on a list with the same movies in the same order.  
 In contrast, if I make an accurate list of the 100 most financially successful movies, and you make an accurate list of the 100 most financially successful movies, our lists will be extremely similar if not identical.  Their extreme similarity is inevitable (hence unavoidable) because their content is dictated by the same external constraints, namely, the historical records of box office receipts, DVD rentals and so forth.
Let’s now compare Pivot Point v. Charlene (7th Cir 2004) with Carol Barnhardt v. Economy Cover (2d Cir 1985).  In Pivot Point, plaintiff's work was a mannequin head used by beauty schools to teach make-up application. Plaintiff sued defendant for selling a similar mannequin head.  The court held that plaintiff's mannequin head was copyrightable, rejecting defendant's argument that plaintiff’s work was a useful article whose aesthetic aspect was inseparable from its utilitarian function as a teaching tool. In Carol Barnhardt, plaintiff's works were male and female mannequin torsos used by stores to display clothing. Plaintiff sued defendant for selling similar mannequin torsos.  The court held that plaintiff's mannequin torsos were not copyrightable. 
The key distinction between the Pivot Point case and the Carol Barnhardt case is that plaintiff’s work was avoidable in the former and unavoidable in the latter.  In Pivot Point plaintiff's mannequin head was evitable.  The head, dubbed "Mara," was stylized, with distinctive angular features including an upturned nose and almond-shaped eyes. Because Mara was stylized, an independent creator would avoid her. That is, one who created a mannequin head without knowledge of Mara would very likely create a mannequin head that differed from Mara much more than defendant’s mannequin head did.  Many different mannequin heads can serve as props for the teaching of make-up application.
In Carol Barnhardt plaintiff's generic and nameless mannequin torsos were not evitable.  They were more or less anatomically accurate representations of average, lean male and female torsos.  Anatomical accuracy is an external constraint that could channel independent creators of mannequin torsos toward mannequin torsos very similar to plaintiff's. 
Let’s now compare Kielselstein-Cord v. Accessories by Pearl (2d Cir 1980) with Brandir v. Cascade (2d Cir 1987). In Kieselstein plaintiff's work was a highly stylized belt buckle that sold at high-fashion jewelry stores and that had been included in museum collections. Plaintiff sued defendant for selling a similar buckle. The appellate court held that plaintiff's buckle was copyrightable, rejecting defendant's argument that plaintiff’s work was a useful article whose aesthetic aspect was inseparable from its utilitarian function of holding up pants. In Brandir plaintiff's work was a bike rack consisting of a single metal tube undulated from end to end like a series of waves. Plaintiff sued defendant for selling a similar bike rack. The appellate court held that plaintiff's rack was not copyrightable.
The key distinction between Kielselstein-Cord and Brandir is that plaintiff's work was avoidable in the former and unavoidable in the latter.  Plaintiff’s buckle in Kielselstein-Cord was evitable.  One who created a buckle without knowledge of plaintiff's buckle would very likely create one that differed from plaintiff’s much more than defendant’s buckle did.  
In Brandir plaintiff's work was not evitable. Wave shapes are simple, and ubiquitous in nature, art and technology.  Shapes that are simple and ubiquitous tend to be widely employed by independent creators, much as short phrases, scènes à faire (stock elements) and other uncopyrightable building blocks tend to be widely employed by independent creators. Further, a wave-shape bike rack provides benefits that no other shaped bike rack provides. Compared with a rack with corners, for instance, a wave-shape rack is more durable, lacks sharp edges, and can be made of a single metal tube in a few steps with few or no welds, bolts or brackets.  A wave-shape rack also fits bikes alternately over the wave troughs and under the adjacent wave crests, thereby supporting and separating each bike along its entire height and on both sides. Insofar as only a wave-shape rack provides these benefits, these benefits are external constraints that could channel others to independently create a wave-shape rack.  
Morrissey v. Procter & Gamble (1st Cir 1967) is analogous to Brandir and to Carol Barnhardt.  In Morrissey plaintiff was in the business of devising games and contests. The work in question consisted of plaintiff’s rules for a sweepstakes contest, shown below.      
1. Entrants should print name, address and social security on a boxtop, or a plain paper.  Entries must be accompanied by _____boxtop or by plain paper on which the name _____is copied from any source.  Official rules are explained on _____packages or leaflets obtained from dealer.  If you do not have a social security number you may use the name and number of any member of your immediate family living with you.  Only the person named on the entry will be deemed an entrant and may qualify for a prize.
  Use the correct social security number belonging to the person named on entry____ [A] wrong number will be disqualified.

Below are defendant’s sweepstakes rules. The differences, in italics, represent information specific to defendant and use of more standard grammar. 
 1. Entrants should print name, address and social security on a Tide boxtop, or on plain paper.  Entries must be accompanied by Tide boxtop (any size) or by plain paper on which the name “Tide” is copied from any source.  Official rules are available on Tide Sweepstakes packages, or on leaflets at Tide dealers, or you can send a stamped, self-addressed envelope to: Tide “Shopping Fling” Sweepstakes, P.O. Box 4459, Chicago 77, Illinois.
    If you do not have a social security number you may use the name and number of any member of your immediate family living with you.  Only the person named on the entry will be deemed an entrant and may qualify for a prize.
    Use the correct social security number belonging to the person named on the entry -- wrong numbers will be disqualified.
	
	The appellate court held that plaintiff’s expression was so straightforward that it merged with the uncopyrightable contest idea and thus could not be protected. To re-frame in terms of unavoidability, note that very straightforward (efficient) expression of a simple but useful idea tends not to be evitable.  Efficiency in expression (concision, precision and logical order) combined with simplicity and utility of the idea expressed constitutes an external constraint that can channel others to independently create very similar expression.  Hence another sweepstakes host could independently devise rules very similar to plaintiff’s.  
Suppose instead that plaintiff in Morrissey had expressed its rules in the form of a colorful and circuitous limerick and that defendant’s rules in this variant were as similar to plaintiff’s limerick as defendant’s rules were similar to plaintiff’s straightforward rules in the original case. The variant is analogous to Pivot Point and Kielselstein-Cord.  In the variant defendant would be held liable. 

II.  Avoidability Fleshes Out What It Means for Copyright to be “Thin”
Some cases of no liability turn not on the court's decision that plaintiff's work is uncopyrightable but on the court's decision that defendant's work does not infringe the copyright on the work. Avoidability is a matter of degree.  A work of medium avoidability may be avoidable enough to be copyrightable but infringed only if defendant’s work is very similar. The less avoidable plaintiff's work, the more similar to it defendant's work must be to infringe.  Plaintiff’s copyright can be enforced only against very similar subject matter if independent creators would avoid subject matter that is very similar to plaintiff's work (but not avoid subject matter that is merely somewhat similar to plaintiff’s work) or if honest creators can avoid copying subject matter that is very similar to plaintiff’s work (but cannot avoid copying subject matter that is merely somewhat similar to plaintiff’s work).
Compare Rosenthal Jewelry v. Grossbardt (2nd Cir. 1970) ("Rosenthal I") with Rosenthal Jewelry v. Kalpakian (9th Cir. 1971) ("Rosenthal II"). In both cases plaintiff's work was a jeweled pin shaped like a bee and in both cases defendant sold jeweled pins shaped like a bee. In Rosenthal I, the district court found infringement and the appellate court, Judge Friendly presiding, affirmed. In Rosenthal II, the district court found no infringement and the appellate court affirmed.
The key distinction between Rosenthal I and Rosenthal II is that the degree of similarity between plaintiff's pin and defendant's was avoidable in the former and unavoidable in the latter. In Rosenthal I defendant had used one of plaintiff's pins to make a mold to produce a pin that was identical to plaintiff's except that defendant's had inferior gems.  In Rosenthal II defendant produced its own pin from its own mold. Accordingly, defendant's pin fell into an unavoidable degree of similarity with plaintiff’s pin.  Given that insect-shaped pins have long been popular and given that bees are well-known insects, many independent creators have created and will create bee pins.  To be recognized, a bee pin must approximate the appearance of a real bee. This appearance is an external constraint that channels independent creators of bee pins towards bee pins that are similar to a degree. An owner of a copyrighted bee pin has no cause of action against a party whose bee pin does not exceed the unavoidable degree of similarity. The copyright owner has a cause of action only against a party whose bee pin is so similar to plaintiff's that a court can assume that such close similarity was due to copying instead of being dictated by external constraints.
The less that plaintiff's work was dictated by external constraints, the less likely that others will independently create works similar to plaintiff's.  If there were no external constraints that drove the form and substance of plaintiff's work, there will usually be no external constraints to drive others to independently create works similar to plaintiff's.   Thus the more evitable plaintiff's work, the broader the scope of protection around it. 
Suppose that similarity could be measured in percentages between 0 and 100, with 0% representing no similarity and 100% representing perfect identity (exactly the same).  Suppose that plaintiff's pin and defendant's pin are each 75% similar to the appearance of a real bee, but only 70% similar to each other (because, say, the legs on plaintiff's bee are too large relative to a real bee's while the legs on defendant's bee are too small relative to a real bee's).  Clearly, the 70% similarity between the pins may be due to each pin having been dictated by the appearance of a real bee.
Now suppose that plaintiff's pin and defendant's pin are still 70% similar to each other but that the pins are very creative and only 25% similar to a real bee.  Here it is far more likely that the 70% similarity between the pins is due to defendant having copied from plaintiff.  Accordingly, a finding of infringement is far more likely in this case, even though the similarity between the pins is still 70%.

III.  Unavoidability Trumps Creativity; Avoidability Trumps Lack of Creativity
The Supreme Court declared that “[o]riginality remains the sine qua non of copyright.” It then defined originality as having two components: independent creation (as opposed to copying from another work or the public domain) and “some minimal degree of creativity.”  The Court was right about independent creation.  Creativity, however, is merely a proxy for avoidability.  When creativity and avoidability point in different directions, the case outcomes follow avoidability.  Copyright will not protect creative works if they become indispensable (unavoidable). Conversely, copyright will protect uncreative works if they are nonetheless evitable and dispensable (avoidable).
Most highly creative works are highly evitable and highly dispensable – no other creators would independently create them and honest creators can easily avoid copying them.  A few highly creative works, however, achieve dominance via path dependence, network effects, adoption as an industry standard, or adoption into law. Although no one would ever independently create these works, honest creators may have to copy them to some extent to efficiently pursue a socially beneficial enterprise.  Such works are indispensable.  
Consider Lotus v. Borland (1st Cir 1995), aff'd by equally divided court (1996).  Lotus’s 1-2-3 spreadsheet software achieved dominance.  Borland later began selling spreadsheet software that included not only Borland's own menu but also an option for users to operate the Borland software through an emulation of Lotus's menu. Lotus claimed that the emulation infringed its copyright in the menu. The appellate court held that Lotus's menu was uncopyrightable, though it was clearly creative and entailed a litany of non-obvious choices.  The majority reasoned that the Lotus menu was a “method of operation” and thus barred by 17 USC 102(b). One problem with this reasoning is that if the Lotus menu is an uncopyrightable method of operation, then not only any software menu but all software in general seems to be an uncopyrightable method of operation. Yet we know that copyright clearly protects software. 
As the concurring opinion suggests, the real reasons Lotus lost were that: (1) the Lotus menu had achieved dominance through path dependence (much like the QWERTY keyboard layout); (2) Borland had demonstrated good faith by designing its own spreadsheet and by not copying any of Lotus’s code to create the emulation; and (3) Borland could not compete with Lotus unless it provided the emulation as an option for users who had invested time in learning the Lotus menu. 
In sum, a highly creative work may, by achieving dominance, itself become an external constraint on the work of honest creators who cannot avoid depending on the dominant work.  In such cases, courts will let honest creators off the hook, no matter how creative the dominant work was. Unavoidability trumps creativity.  
Conversely, avoidability trumps lack of creativity.  For example, video footage of events captured by those who happened to be at the right place and time is protected by copyright.  Even footage captured by an automated security camera might be protected.  To say the making of these videos entailed creativity is a stretch. Even if we assume that they entailed a trace of creativity, the broad copyright protection that they enjoy seems disproportionately greater than the trace of creativity that went into them.  As explained in the previous section, the breadth of copyright protection is a function of avoidability.  The degree to which these videos are avoidable – not the degree to which they were creative – matches the breadth of their protection. A work is avoidable if others will not independently create it (i.e., it’s evitable) and honest creators can avoid copying it (i.e., it’s dispensable).  Evitability is a slam dunk for video footage of an event.  No one else will ever independently capture the same footage of an event that has already occurred.  Video footage will normally be dispensable, but exceptions can arise if the footage uniquely documents an event of such historic or cultural importance that honest creators must copy it to some extent to efficiently pursue a socially beneficial enterprise.
The Supreme Court defines creativity as a component of originality.  Ironically, creativity performs no original work in copyright law. Avoidability does everything creativity appears to do and more. 

IV.  Avoidability Illuminates the Line Between Patent and Copyright
The line between patent and copyright is not a line between subject matter that has practical utility and subject matter that lacks it. The entertainment and catharsis provided by movies, music and novels is a practical utility.  In any event, copyright protects works with “more practical” utility, for example, directories, technical manuals, price guides, textbooks, encyclopedias, and computer code.  Instead of practical utility, the line between patent and copyright reflects a divide between unavoidable and avoidable subject matter.  
Patentable inventions tend to be heavily dictated by external constraints, namely, the laws of physics, the requisites of safety, scarcity of resources, costs of production, and particular human needs.  These constraints channel independent inventors towards the same inventions.  Hence most patent infringement suits are against independent inventors as opposed to pirates.  More to the point, most inventions are inevitable in the long run – because external constraints channel inventors toward them and because the costs of invention fall with time.  The purpose of patents is to reward inventors enough to accelerate invention. A patent rewards an inventor not for bringing us an invention that would never have come but for bringing us the invention sooner than it would have come absent the promise of a patent. In a world with no patents, most inventions would still come but they would be postponed until they were cheap to invent.
Accordingly, for patentable subject matter we grant exclusivity of short duration (20 years from filing), and we examine patent applications closely to make sure that the inventor actually invented what he claims and that the invention isn't so trivial that it could have been created very soon even without the promise of patent protection.  In general, we do not want to award 20 years of patent protection for an invention that another would independently create in six months even without the inducement of a patent.
Copyright applies to subject matter that is not heavily dictated by external constraints. No one will independently write the same novel that you write, because no external constraints will dictate that the form and substance of the novels tightly converge. Copyrightable works are evitable (the opposite of inevitable).  In a world with no copyright protection, most evitable works (such as novels and movies) would never come. Accordingly, copyright protection arises automatically and lasts longer than patent protection.  

V. Avoidability Unifies Copyright’s Limiting Doctrines
Copyright has many limiting doctrines: the idea/expression dichotomy; the fact/expression dichotomy; the process/expression dichotomy; the merger doctrine; the useful article doctrine; the scènes à faire doctrine; the blank forms doctrine; and bars against copyright protection for simple shapes and symbols, simple dance moves and conventional pantomime gestures, single words and short phrases, pictures of publicly visible buildings, mere variations of typeface, and government works. The limiting doctrines are manifestations of the avoidability principle. The limiting doctrines thus turn on evitability and dispensability.
A. The Fact/Expression Dichotomy  
According to the Supreme Court, facts are not copyrightable. But “fact” is very much a term of art in copyright. A work that seems factual in the everyday sense of the word ‘factual’ may or may not be copyrightable. Whether it is depends on whether it is avoidable.  The courts will regard plaintiff’s work as uncopyrightable fact if an independent creator could generate the same work or if an honest creator cannot avoid copying plaintiff’s work. Independent creators could generate the same work if the work consists of information that is accurate, stable and independently observable and verifiable (“hard fact”).  
Even works full of hard facts may be avoidable. Biographies based on historical documents, for example, are copyrightable. Nor is copyright for biographies enforceable only against works that closely paraphrase.  Suppose Jones plans to writes a biography of Napolean.  Many biographies of Napolean have been written and Jones wants to do more than retell in his own words the same series of already-known tales about the emperor. Jones decides instead to describe a handful of the less famous tales in great detail, to summarize other tales, to pass over others entirely, and to deviate now and again from chronological order.  Suppose Smith reads Jones’s biography and then writes a biography that tells, in Smith’s own words, the same tales as Jones’s and with the same degree of emphasis and in the same order. Will a court find Smith to be an infringer? Yes. Had Smith written a biography without first reading Jones’s, Smith’s biography would have been much less similar to Jones’s.  More generally, anyone who wrote a biography independent of Jones’s would write one that was less similar to Jones’s than the biography Smith actually wrote.  The structure of Jones’s biography is in no way the only feasible structure for a biography of Napolean.         
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