How the Law Treats Ideas in Copyright and Trade Secret Litigation - Copyright Ideas

Intellectual Property Protection for Ideas

[About the author: Scott Lesowitz is a Harvard Law School graduate and former Assistant United States Attorney based in Los Angeles, California. His e-mail address is scott@lawbylg.com, and his phone number is 323-452-9909.]

Intellectual property law does not protect mere ideas. However, courts often struggle in copyright and trade secret cases in deciding whether the thing before the court is a mere idea or something sufficiently expressed or developed to qualify for legal protection.

What is clear is that mere creative sparks are unprotected under any type of intellectual property law. On the other end, there is clear protection for fully-developed expressions of an idea (in the case of copyright) or ideas that been turned into a useable and valuable body of information (in the case of trade secret), or a fully developed invention (which may implicate both patent and trade secret). In the middle, the law can be muddled.

As ideas go largely unprotected under intellectual property law, people concerned about theft of their ideas should try to enter into nondisclosure and non-usage agreements with other people with whom they share their ideas. That way, if unauthorized use occurred, the victim may sue for breach of contract.

In contrast to patent protection, no formalities such as registration are required to receive copyright or trade secret protection. (Registration is required in order to bring a copyright infringement lawsuit, but the registration may be obtained after the infringement occurs.) No registration system even exists for trade secrets.


Starting with copyright, one of the first principles taught in any copyright law course is that copyright protects expression of ideas, but not the ideas themselves. The text of an original story receives copyright protection. The general idea for a story is not copyrighted.

In practice, the distinction between an idea and a copyrightable expression can be fuzzy. For example, general plot ideas of a television show are not protected by copyright. Therefore, one court held that the weight-loss reality television show “The Biggest Loser” did not infringe the copyright of a treatment for a television show that had many similar elements to “The Biggest Loser.” Milano v. NBC Universal, Inc., 584 F.Supp.2d 1288 (C.D. Cal. 2008).

However, the court in Metcalf v. Bocho, 294 F.3d 1069 (9th Cir. 2002) found that a jury could reasonably find copyright infringement between a treatment for a television show and an actual television show (“Hill Street Blues”) that shared many story elements but not much more than that. The court’s language in arriving at its conclusion shows how fuzzy the distinction between ideas and expression can be: “However, the presence of so many generic similarities and the common patterns in which they arise do help the Metcalfs satisfy the extrinsic test. The particular sequence in which an author strings a significant number of unprotectable elements can itself be a protectable element.” Id. at 1074.

Trade Secret Law

The nuanced (or convoluted) treatment of ideas permeates trade secret law. In California, the courts have bickered on the seeming basics and used head-scratching language.

The definition of “trade secret” under California law, which is broad, does not include “ideas,” but rather defined types of “information.” California Civil Code Section 3426.1(d) states, “Trade secret” means “information, including a formula, pattern, compilation, program, device, method, technique, or process, that [meets certain requirements].”

The court in Silvaco Data Systems v. Intel Corp., 184 Cal.App.4th 210, 220-221 (2010), stated that, “Trade secret law does not protect ideas as such….[T]he trade secret is not the idea or fact itself, but information tending to communicate (disclose) the idea or fact to another. Trade secret law, in short, protects only the right to control the dissemination of information.”

Then three years later, the court in Altavion, Inc. v. Konica Minolta Systems Laboratory, Inc., 226 Cal.App.4th 262-55 (2014), critiqued the analysis of Silvaco. Altavion stated, “In isolation, the statement ‘[t]rade secret law does not protect ideas as such’ [in Silvaco] is easily misunderstood. In fact, Silvaco plainly does not hold that secret ideas are not protectable under trade secret law….trade secret law protects the inventor’s right to control the dissemination of information ”—the information being the idea itself.” Altavion, 226 Cal.App,4th at 55-56 (certain citations and quotations omitted).

[About the author: Scott Lesowitz is a Harvard Law School graduate and former Assistant United States Attorney based in Los Angeles, California. His e-mail address is scott@lawbylg.com  and his phone number is 323-452-9909. This page is for educational purposes only. No legal advice or assistance are given.]

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