Reconceptualizing Copyright's Merger Doctrine

Abstract

Under the merger doctrine of U.S. copyright law, courts sometimes find original expression in a work of authorship to be “merged” with the idea expressed, when that idea is incapable of being expressed, as a practical matter, in more than one or a small number of ways. To be true to the principle that copyright law does not extend its protection to ideas, courts have held in numerous cases that the merged expression is unprotectable by copyright law.

This Article, which memorializes the 2015 Brace Lecture, identifies and dispels eight myths about the merger doctrine, including the myth that the doctrine was borne in the Supreme Court’s Baker v. Selden decision. It also discusses merger in relation to other copyright doctrines, such as scenes a faire, originality, and the exclusion of processes embodied in copyrighted works. Finally, it considers various functions of the merger doctrine, such as averting unwarranted monopolies, policing the boundaries between copyright and patent law, and enabling the ongoing progress of knowledge.

Keywords: copyright, merger doctrine, merged expression