A Series of Abstractions: Learned Hand and the Line No One Can Fix in Nichols v. Universal

In Nichols v. Universal Pictures, Judge Learned Hand articulated the abstractions test for separating unprotectable ideas and stock characters from protectable expression, the most enduring tool in nonliteral copyright analysis.

On November 10, 1930, the United States Court of Appeals for the Second Circuit decided Nichols v. Universal Pictures Corp., 45 F.2d 119. The panel comprised Circuit Judges Learned Hand, Thomas Walter Swan, and Augustus N. Hand; Judge Learned Hand wrote the opinion. The court affirmed a decree dismissing playwright Anne Nichols’s infringement suit against Universal. The case is brief, but it produced the single most cited passage in the law of nonliteral copyright infringement — the “abstractions” formulation that courts still deploy, almost verbatim, to separate the idea a work embodies from the expression copyright protects.

At a glance

Case: Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. Nov. 10, 1930)
Court: United States Court of Appeals for the Second Circuit
Author: Judge Learned Hand, joined by Judges Swan and Augustus N. Hand
Holding: A copyright in a play protects more than its literal text but not its general theme or its stock characters and situations; comparing two works requires locating, along a spectrum of increasing abstraction, the point past which only unprotectable ideas remain. Universal’s film did not copy Nichols’s protected expression.
Legacy: Source of the abstractions test and an early statement of the scènes à faire principle; foundational to all later nonliteral-similarity analysis.

The works: a Broadway hit and a studio comedy

Anne Nichols wrote Abie’s Irish Rose, a 1922 stage comedy that became one of the longest-running Broadway plays of its era. Its premise: a Jewish young man secretly marries an Irish Catholic young woman, each concealing the union from a disapproving, tradition-bound father; the fathers feud, a child (in fact, twins) is born, and reconciliation follows. Universal produced and distributed a motion picture, The Cohens and the Kellys, drawn from a play about an Irish family and a Jewish family, neighbors and rivals in business, whose children marry across the divide, occasioning a quarrel between the fathers and an eventual peace.

Nichols alleged that the film appropriated the heart of her play. She did not claim that any dialogue had been lifted. Her theory was that Universal had taken “an abstract of the whole” — the essential dramatic situation and the character types that animate it. That theory put squarely before the court the question copyright had circled since Baker v. Selden: when one work resembles another not in words but in pattern, how does a court tell appropriated expression from a shared idea?

Reasoning: the ladder of abstractions

Hand’s answer did not pretend to be a rule. It was a method, and an honest admission that the method has no fixed stopping point.

“Upon any work, and especially upon a play,” he wrote, “a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his ‘ideas,’ to which, apart from their expression, his property is never extended.”

The image is a ladder. At the bottom rung sits the work in full detail — every line, every scene, every particularity of plot and character. As one ascends, detail falls away: the specific scenes become a plot summary, the summary becomes a theme, the theme becomes a one-line premise, and finally the premise becomes the title or the bare subject. Somewhere along that ascent the description crosses from protectable expression into unprotectable idea. Copyright protects the lower, detailed rungs; it cannot reach the upper, abstract ones, because to do so would let an author monopolize the idea itself.

Crucially, Hand insisted that “[n]obody has ever been able to fix that boundary, and nobody ever can.” The location of the line is not derivable from a formula; it is a judgment about how much of what the second author took was particularized expression and how much was the general conception any author working in the same vein would share. This candor is the opinion’s enduring strength: it gives courts a disciplined way to frame the question while refusing to pretend the answer is mechanical.

Stock characters and the seed of scènes à faire

Applying the method, Hand found that what the two works shared lived high on the ladder. The conflict of a Jewish father and an Irish father over the marriage of their children, the quarrel, the grandchild, the reconciliation — these were the idea of the piece, not its expression. The differences in how each work developed its characters and incidents were, to Hand, “so marked” that the resemblance dissolved on inspection.

Most influentially, Hand addressed the characters directly. A character can be protected, he allowed, but only to the extent it is developed with distinctive, particularized expression: “the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.” The quarreling, tradition-bound fathers in both works were, he concluded, “no more than Jew and Irishman” — stock figures, the common property of dramatists, owing their resemblance to the genre and the situation rather than to copying. This is the doctrine later courts would name scènes à faire: incidents, characters, and settings that flow more or less inevitably from a given theme or setting are not protectable, because they belong to the idea, not to any one author’s expression.

Doctrinal afterlife

Nichols supplies the conceptual machinery that later courts refined into operational tests. The Ninth Circuit’s extrinsic/intrinsic framework, the Second Circuit’s “total concept and feel” inquiries, and most directly the abstraction-filtration-comparison method announced for software in Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992), all begin from Hand’s insight that nonliteral similarity must be assessed at the right level of generality. Altai expressly built its “abstraction” step on Nichols, transplanting Hand’s ladder from drama to program structure. The character-development principle, meanwhile, runs through decades of disputes over fictional characters, from comic-book heroes to literary figures.

Open questions

Can the boundary ever be principled? Hand denied that the line can be fixed, yet litigants and courts need predictability. Every later test is an attempt to discipline a judgment Hand thought irreducibly evaluative.
How developed must a character be? Nichols protects well-delineated characters but offers no threshold. Courts continue to wrestle with how much particularity converts a “type” into protected expression.
At what altitude should courts compare? Choosing the level of abstraction often decides the case, yet Nichols gives no rule for choosing it — a recurring source of unpredictability in plot- and character-similarity suits.

Implications

Compare at the right level. Infringement analysis for nonliteral copying must isolate particularized expression from the general theme; resemblance at a high level of abstraction is not infringement.
Stock elements are free. Characters, scenes, and situations that follow naturally from a theme or setting belong to all authors — the scènes à faire principle in embryo.
Character protection scales with development. Authors who want enforceable character rights must render those characters distinctly; thinly drawn types invite the Nichols penalty.
Candor about indeterminacy is durable. The opinion has lasted nearly a century precisely because it offers a method rather than a false formula, a posture later courts have echoed when confronting hard similarity questions.

Frequently asked questions

Did Nichols win or lose? She lost. The Second Circuit affirmed dismissal, holding that The Cohens and the Kellys took only the unprotectable idea and stock characters of Abie’s Irish Rose, not its protectable expression.

What is the abstractions test? It is Judge Hand’s method of describing a work at successively more general levels and identifying the point at which the description becomes a mere idea. Expression below that point is protectable; everything above it is not. Hand stressed that the exact point cannot be fixed by rule.

How does Nichols relate to scènes à faire? Hand’s treatment of the feuding fathers as generic types — “no more than Jew and Irishman” — anticipated the doctrine that stock characters and situations inherent in a theme are unprotectable, which later courts formalized as scènes à faire.