Copyright, Originality, and the End of the Scenes a Faire and Merger Doctrines for Visual Works

Abstract

The merger doctrine in copyright states that if an idea and the expression of the idea are so tied together that the idea and its expression are one - there is only one conceivable way or a drastically limited number of ways to express and embody the idea in a work - then the expression of the idea is uncopyrightable because ideas may not be copyrighted. The scenes a faire doctrine complements the merger doctrine by providing that certain subject matter - stock images, tried and true story lines, fables and folklore, scenes of nature, common visual and cultural references, all of which fall under the description of scenes that must be done - are not copyrightable because they are part of the public domain and no one can obtain a monopoly on such images by putting them into a fixed and tangible medium of expression. Although the courts have from time to time acknowledged that the standards for originality and creativity required for copyright are intentionally low, and that there are a myriad of ways to express themes and ideas visually, half of the circuits of the United States Courts of Appeals have applied a reductionist, dissection and filtration approach in their consideration of infringement of visual works that is driven by an expanded view of the applicability of the merger and scenes a faire doctrines to visual works. This article will argue that the merger doctrine and scenes a faire doctrine are perfectly well adapted to verbal and literary works, but they have no meaning and no proper application with regard to visual works and should be discarded in the consideration of infringement of visual works.

Keywords: copyright, merger, merger doctrine, originality, idea-expression, idea-expression dichotomy, scenes a faire, visual art, art

JEL Classification: K39, K49