Gavin Jones
Baker v. Selden
Dr. Phillips
VAST 231
2/19/12
Baker v. Selden is a seminal case in the history of copyright law, for it effectively
established the idea-expression dichotomy. That is to say, copyright protects an individual
manifestation of an idea, but not the idea itself (Sano). Contrast this to patent law, which seeks to
protect the fundamental concept behind a creator’s invention. This “aesthetic” vs. “utilitarian”
distinction is precisely what allows copyright its creative liberty (Ghosh, 4). The difficulty, of
course, comes with differentiating an idea from its expression within an inherently limited
medium. This is a problem encountered more in the musical and visual realms than in language,
which has a more punctual and diverse vocabulary. Language is how humans think. It is how
humans share what they think. The same cannot be said for musical notes. Where is the
proverbial “dichotomy” between idea and expression to be found in these alternate idioms? What
legal implications accompany our definition of this dichotomy? These are nagging questions in an
increasingly “borrow-heavy” culture where everyone seems to want his or her own piece of the
pie.
In 1865, an Ohio accountant by the name of Charles Selden was eager to sell his selfdevised bookkeeping system to the U.S. Department of the Treasury in Washington, D.C. Selden
believed that if the capitol adopted his methods, so too would every state, county and township
across America. Before he knew it, private firms would follow suit. All Selden needed to do was
adapt his system to the requirements demanded by the U.S. Treasury, and he was on the fast track
to fame and fortune. In anticipation of this great success, Selden ordered thousands of copies to
be made of his bookkeeping books, so as to keep up with the insatiable demand that would
accompany Washington’s embrace (Samuelson, 2).
Unfortunately for Selden, the contract with the U.S. Treasury never materialized, and the
thousands of copies of his books he made gathered dust on store shelves. Selden was forced to
sell the rights of his books and his system to his publishing company. In 1871, he died, leaving
behind his wife Elizabeth and their daughter with a substantial amount of debt (Samuelson, 2).
All the while, another Ohio resident – a man by the name of W. C. M. Baker – had published a
book based on Selden’s bookkeeping system only a few years earlier. However, Baker - unlike
Selden - had a knack for self-promotion and clarity that ensured his books a secure clientele
(Samuelson 3)
When Elizabeth Selden found out about Baker’s books (and his fortune), she alerted her
husband’s creditors. Swiftly and boldly, they decided to reassign Mrs. Selden her husband’s
assets. They also hired an intellectual property attorney, Samuel Fisher, to prepare a lawsuit for
her. Fisher went on to file a complaint of copyright infringement on behalf of Mrs. Selden against W. C. M. Baker- in federal court. In doing so, he demanded an injunction against the
further publication and distribution of Baker’s works (Samuelson, 3). This was granted during the
trial. Apparently, the court felt as outraged by the similarities between the books as the plaintiff
did.
Baker would not stand for this decision. His new, professional legal team made an appeal
to the Supreme Court in 1879, invoking the defense that the nature of Selden’s work was simply
not subject to copyright because it contributed to the “useful arts,” not science (Baker V Selden).
The trial court had considered Selden not only the sole owner of the copyright to his books, but
also the exclusive owner of the “Selden system” described therein. Here was the prime point of
attack for Baker and his prestigious legal council (Samuelson, 21).
Elizabeth Selden’s defense remained the same, emphasizing the originality of her
husband’s books and the “substantial identity” infringed upon by Baker’s (Samuelson, 23). The
Supreme Court found itself in a compromising position. A previous case, Drury vs. Ewing,
supported Selden’s claim that authors could retain exclusive rights to control their works through
copyright law. Copyright law also gave certain privilege to inventors (Samuelson, 26). But did
this mean that every author has a monopoly over the underlying content of his or her book?
Justice Joseph P. Bradley, who authored the court’s opinion for this case, stated that endowing
authors with this right of “exclusive property” would amount to “fraud and surprise on the
public.” Never before had the Supreme Court been forced to reconcile so directly with the bounds
of copyright law. Where did copyright end? Where does it begin (Samuelson, 27)?
The court finally decided in favor of Baker, perceiving “a clear distinction between the
book, as such, and the art which it is intended to illustrate.” Imagine an artist writes a book on the
drawing of perspective. The copyright of this book would not give “the author an exclusive right
to control the use of perspective.” The reason the Baker v. Selden case had been so troublesome
was because of the “peculiar nature of the art described in Selden’s books” whereby “the
illustrations and diagrams happened to correspond more closely than usual with the actual work
performed by the operator who uses the art.” Nevertheless, the message remained clear; copyright
protects only an author’s “explanation” of a particular notion or idea. If an idea merits protection,
it is through patent law, not copyright law, that such protection is granted (Baker v Selden).
Fast forward some 130 years later, and technology begins to give poignant new
significance to the Baker v. Selden decision. Today, the idea/expression dichotomy is well
established and accepted. The criterion separating the two, however, is hopelessly nebulous and
controversial. Nowhere is this more evident than in the musical world (Sano).
There are essentially two phenomena that strain the idea/expression dichotomy in this
respect; hip-hop sampling and musical resemblance. Musical sampling is often defended under
copyright’s “fair use” doctrine, but this is most effective when the song in question is for noncommercial purposes. Let’s say, for instance, I create a new song from all-to-familiar musical
motifs. The guitar riff from The Rolling Stones “Satisfaction,” the sax solo from Gerry Rafferty’s
“Baker Street,” and the violin part from Bob Dylan’s “Hurricane.” If I add my own background
beat, and intermittent lyrics, what would I be left with… apart from a seemingly piecemeal and
probably strange song? Have I stolen the expression of each of these artists by using elements
from each of their original songs? Is that guitar riff Keith Richard’s idea, or his expression of an
idea? By changing it’s context – have I transformed its expression? In other words, does it mean
something else when juxtaposed by a violin part, set to an alternate beat, and rapped over? Baker
vs. Selden offers us little help in this department.
The case of “musical resemblance” isn’t quite as time specific. Basically, the idea behind
this is that at a certain point, someone will compose something that has already been composed,
completely by coincidence. There are only so many notes, rhythms, cadences and dynamics that
are pleasing to the human ear. Paul McCartney’s “Yesterday” sounds a lot like Nat King Cole’s
rendition of “Answer Me, My Love.” And yet, McCartney denies any conscious inspiration from
this song (BBC News). To his defense, the justices in Baker v. Selden decided that “if there are
only one or a very small number of ways to express an idea, courts should find the idea and its
expression to be merged.” Here is a frequently overlooked caveat- actually a “treatise”- from the
Baker v. Selden policy, which favors the naive artist (Sameulson, 28). By sheer statistical odds,
repetition is bound to happen eventually. Perhaps it would be appropriate for lawyers, judges, and
those who make copyright law their business to reexamine this part of the case document. It
might help to snuff out the more frivolous and petty lawsuits of our time.
It is obvious here, as in other instances, that the decision brought forth by Baker v. Selden
is the bedrock upon which most modern day copyright issues are built. Although of not much
help in defining an “idea” from “expression,” the distinction between the two is a vital one. It
helps to nurture creativity and facilitates the process of authorship. Baker v. Selden was a
necessary clarification in the progress, evolution, and perfection of copyright – a continual
process still in the works today (Baker V Selden). The nuances of the idea/expression dichotomy
will continue to cause issue for decades to come, and we have Baker v. Selden to thank for all of
that.
Works Cited
"Baker V Selden." Copyright. Web. 18 Feb. 2012. <http://copyright.laws.com/famous-cases/baker-vselden>.
Baker v. Selden. Supreme Court. Oct. 1879. FindLaw. Web. <http://laws.findlaw.com/us/101/99.html>.
"BBC NEWS | Entertainment | King Cole 'influenced' Beatles Hit." BBC News - Home. 7 July 2003. Web.
18 Feb. 2012. <http://news.bbc.co.uk/2/hi/entertainment/3050614.stm>.
Ghosh, Shubha. Patenting Games: Or, Baker v. Selden Revisited. Diss. University of Wisconsin Law
School, 2009. Print.
Samuelson, Pamela. "EScholarship: A Turning Point in Copyright: Baker v. Selden and Its
Legacy." EScholarship: University of California. Rochelle C. Dreyfuss & Jane C. Ginsburg,
Eds.) Intellectual Property Stories., 13 Sept. 2004. Web. 18 Feb. 2012.
<http://escholarship.org/uc/item/7qp3n8d1>.
Sano, Kathryn. "An Article About The Idea-Expression Dichotomy « Kathryn Sano." Kathryn Sano. 28
Aug. 2011. Web. 18 Feb. 2012. <http://kathrynsano.com/2011/08/28/an-article-about-the-ideaexpression-dichotomy/>.