Writing Wednesday: Should You Worry About Merger?

As I mentioned in last week’s installment, a copyright holder’s rights are reduced by the “merger doctrine” and the “useful article doctrine.” Since merger is more important to authors, we’ll look at Merger this week and Useful Articles next Wednesday.

The “Merger Doctrine” in copyright states that where a topic requires or permits only one or a very limited range of expressions, the copyright in works about that topic is weak or nonexistent. The reason for the weak copyright is that where ideas are inseparable from their expression, the law says the idea “merges” with the expression, rendering it incapable  of copyright protection or, at best, capable of only very limited protection.

For example: if you write a mystery novel in which your detective drives an automobile by pressing the accelerator and brake with his right foot, you won’t be able to claim copyright violation if someone else’s detective also drives an automobile by operating the pedals with his right foot. As a general rule, that’s how people drive cars. A description of standard automobile operation includes depression of a gas pedal and/or a brake pedal with a foot – usually the right one. The idea must merge with the expression because there really isn’t another way to describe this activity.

Copyright is strengthened by changing the manner in which the idea is expressed, but only to a limited extent.

You might be able to increase your copyright protection by having your detective drive with his hands instead of his feet … but unless you’ve modified his vehicle to allow this, there’s absurdity (and likely an accident) in his future. Stronger copyright, yes, but in many cases the marginal increase in protection isn’t worth the effort unless the idea somehow strengthens the character or advances the story itself. In that case…the sky’s the limit and creativity reigns.

The good news for authors is that while the merger doctrine may decrease copyright on a given sentence or paragraph, inclusion of such ideas in a larger work does not impact the copyright strength of the novel as a whole unless the non-protectable ideas form the bulk or focus of your work.

Authors sometimes worry that descriptions or characters’ “ordinary activities” might cause merger problems, but descriptions are rarely the center or focus of creative works, so the merger doctrine rarely impacts authors of fiction. Generally speaking, the merger doctrine has no noticeable impact on most short stories, novellas, novels and similar works, though it can impact a line or paragraph.

Have questions? Ask away in the comments or ask me on Twitter using the #PubLaw hashtag!