Art + Law: Joy Drury Cox and the Idea / Expression Dichotomy

Amid the threat of Kentucky Arts Council defunding (and the actuality of the organization’s budget cut), the state has been abuzz with conversation about the relevance of the arts. A timely surprise, I received a message from North Carolina artist Joy Drury Cox, whose work is on exhibit at Institute 193 until Feb. 27. Cox told me that she had been contacted by Lexington artist and University of Kentucky Law Professor Brian Frye. The very complimentary Frye said that he used Cox’s work to help illustrate a topic in his copyright law class. He added:

“…I think the works are very beautiful, something like a cross of fluxus & Agnes Martin, with the humor of the former & the ineffability of the latter. And they flummoxed my law students in such a delightful way.”

I recently spoke to Frye, asking him to expand a bit.

His class had been studying the famous Baker v. Selden case of 1879. The story goes like this: In 1859, Charles Selden wrote a book called Selden’s Condensed Ledger, which, through a series of forms and just a few words, described an improved system of bookkeeping. Selden obtained copyright through this publication, and he believed that he could sell this system to county governments and the US. Dept. of the Treasury. His efforts proved unsuccessful. In 1867, W.C.M. Baker wrote a book detailing a very similar system and more successfully sold it—to some 40 counties within five years. Selden’s wife, at this point his widow and the inheritor of the rights to his book, filed suit against Baker for copyright infringement.

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From Selden’s Condensed Ledger

The case eventually made its way to the Supreme Court, whose essential ruling was that copyright protection for Selden’s book extends only to his unique explanation of the invented bookkeeping system. So it did not prevent Baker from using the system or using Selden’s forms. Though Baker’s publication did contain material that was extremely similar to that in Selden’s, Baker’s book was his own interpretation of the system.

Baker v. Selden is the seminal case and oft-cited reference point for suits involving the idea/expression dichotomy. While the law can protect expressions of ideas, it cannot protect ideas themselves. However, sometimes an idea and its expression are very difficult to separate. If an idea can only be expressed in one or a small number of ways, copyright law will not protect the expression of that idea because it it is said to have “merged” with the idea. As an idea cannot be copyrighted, neither can an expression that must inevitably be used in order to express the idea.

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Joy Drury Cox, Standard Timecard Adams Form #9791 (Front and Back), 2009, graphite on paper, 17 x 14 inches.

Prof. Frye asked his class to view Cox’s work through the lens of the Baker v. Selden case. He urges us all to consider the ways in which copyright is relevant to our aesthetic experience, if at all. In an age where ideas and their expressions are easily spread and altered—but can be difficult to trace to their origins—these considerations are increasingly important, especially when it comes to protecting artists, their talents, and their time.

Though an element like a Wendy’s logo is an idea expression that is copyrightable, does an application for a job at Wendy’s have a copyrightable element? The way I see it, by extracting the geometries of these forms, the idea that the artwork represents now has nothing to do with Wendy’s system of organizing its prospective employees. Surely Cox is in no legal danger.

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Joy Drury Cox, Untitled (Wendy’s Application), 2006, graphite on paper, 26 x 34 inches.

Prof. Frye’s identity and experience as an artist has helped to shape his career in law. A recipient of both an MFA and a JD, his research focuses on legal issues affecting artists and arts organizations, and he teaches Civil Procedure, Copyright, Intellectual Property, and Nonprofit Organizations at the University of Kentucky. He also co-founded Kentucky Lawyers for the Arts,  an organization whose mission is “to support the Kentucky arts community by providing referrals to attorneys that are willing to offer pro bono legal services to qualifying artists and arts organizations.” Kentucky Lawyers for the Arts operates entirely online, and its referral services are free. This is a wonderful resource for Kentucky artists.

Clever appropriations of classic novels, Cox’s “Stranger” and “Old Man and Sea” books bring up similar questions concerning the idea / expression dichotomy. These publications are now available via Institute 193. Stop by the gallery and pick one up, or order a copy via our online shop.

—Cat Wentworth, Director

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