Ideas In the Air


Johnny Depp plays Theodore Ellston in the mental-movie version of my novel.

When I wrote my first novel, ONE LAST TIME FOREVER, I worried about sending it out for representation. In an email dated May 21, 2007, I asked the book doctor I’d hired to help me polish it, “Should I copyright my manuscript prior to seeking representation or is that unnecessary?” Her reply: “Not necessary. It’s automatically copyrighted thanks to technology.” Turns out, her answer was only partially correct. An author—of a book, or concept, or system—can protect the expression of an idea but not the idea itself.

Section 102(b) of the Copyright Act codifies the prohibition on copyrighting ideas:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. § 102(b).

So the specific arrangements of words and sentences of my novel, ONE LAST TIME FOREVER, is copyrightable, but one of the ideas it expresses—an enigmatic man named Theodore Ellston who has been unsuccessfully committing suicide for 200 years, each time emerging from a body of water into a different time and place, tries to help the troubled women he meets, hoping to end his immortality once and for all—is not.

This is understandable. As Malcolm Gladwell wrote in 2008, ideas are “in the air.” Ideas evolve the same way life does, always seeking a higher order, which is available only because of the increments that precede it. The discoveries and inventions and works of art based on those ideas are subject to cultural and historical foundations, and are available to anyone who sees the need for its expression and has the desire to express it. Ownership, then, is a matter of who is able to pluck it out of the ether and manifest it first.

The reason copyrights (and patents) exist is because it is assumed that ideas occur to more than one person at a time, and there is a need to establish first-come, first-serve priority. We all know that Gutenberg invented the printing press, right? Well, apparently so did a Dutch inventor named Laurens Jansz Koster. (And some 500 years before both of them, moveable types of wood, both for letterpress and ornaments, were in use in Egypt.) In fact, there are countless examples of this phenomenon of “simultaneous invention” in all fields of study. In 1922, social theorists William Ogburn and Dorothy Thomas published a list of 148 of them in their note, “Are Inventions Inevitable?” which includes the microphone, the theory of natural selection, and the use of gasoline engines in automobiles.

So what do simultaneous invention and copyright law have to do with my novel? Simply that in the contest of getting from a general idea to a unique expression of that idea, I have lost—at least in this instance—and there’s nothing I can do about it.

On September 24, 2014—six years and eight months after I completed ONE LAST TIME FOREVER—ABC will debut the new show by writer/executive producer Matt Miller called “Forever.” It’s the story of medical examiner Dr. Henry Morgan, who doesn’t just study the dead to solve criminal cases; he does it to solve the mystery that has eluded him for 200 years—the answer to his own inexplicable immortality. And every time he dies, he returns to life a few hours later, emerging from a nearby body of water…

It is an interesting idea, and Matt Miller and I both had it. But while I may have expressed it in the form of a novel that got lots and lots of lovely rejection notices from NYC editors, he expressed it in the form of a television show that is being touted as one of this fall’s hot new shows. He wins, if not the copyright, then the competition, because if someday my book gets picked up, the perception will be that it was a rip-off of that TV show about the dead guy coming out of the water. I’ll be the Koster to his Gutenberg.

But even as I mourn the fact that ONE LAST TIME FOREVER will be seen as unoriginal, I’m looking forward to seeing the show. And I’m grateful for all the other ideas “in the air” from which to choose.