Merger in Copyright Law

One of the most important concepts in copyright is the distinction between ideas and expression.  An idea cannot be copyrighted while expression can be.  It’s not always easy to tell which is which, but the basic idea is that ideas are more abstract and expression is more concrete.  It is also possible that for certain items there can be “merger” between an idea and its expression.  In that case, no copyright protection can be given because that would be copyrighting an idea.

In the real world, very few copyrights are denied on merger grounds.  The case that I use to teach the concept is from the early 1970s (Kalpakian) and concerns a jeweled bee pin.  Here’s my question–are there other actual examples that people are aware of?  It’s relevant because the issue may come up in the article that Deven and I are writing on 3D printing.

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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1 Response

  1. It depends on what you mean by “denied.” I think merger comes up in the abstraction/filtration/comparison test when comparing elements, even if the overall copyright is not “denied.” As for 3D designs that match reality, it’s unclear how merger would work, because the design for a copyrighted object might be copyrighted just like the object. The copyright architectural rules, for example, deal with this issue.

    If the work is utilitarian and thus not copyrightable at all, then its 3D design file might not be – if that’s your point.

    We address this issue (a bit) right at the end of an article/treatise chapter on virtual reality – where we posited that protection would be minimal as the virtual object comes close to reality.

    This view was affirmed (some 15 years later) in Meshworks.