[2] The Supreme Court held in Selden that, while exclusive rights to the "useful arts" (in this case bookkeeping) described in a book might be available by patent, only the description itself was protectable by copyright.
'"[4] In the English decision of Donoghue v. Allied Newspapers Ltd. (1938) Ch 106, the court illustrated the concept by stating that "the person who has clothed the idea in form, whether by means of a picture, a play or a book" owns the copyright.
1986), the Second Circuit said that in a film about cops in the South Bronx it was inevitable that the scenery would include drunks, stripped cars, prostitutes, and rats.
The merger doctrine is typically applied only to factual information or scientific theories, not to imaginative works such as plays or novels where the author has a much broader choice of expression.
"[21] United States courts are divided on whether merger prevents copyrightability in the first place, or should instead be considered when determining if the defendant copied protected expression.
[22] A difficulty posed by the idea-expression distinction is that "[n]obody has ever been able to fix that boundary, and nobody ever can", as Judge Learned Hand wrote for the Second Circuit Court of Appeals in 1930's Nichols v. Universal Pictures Corp., holding that while a fictional character can be copyrighted, it must be well-developed.
[24] Thirty years later, Hand reiterated that point in a case that held print patterns on fabrics copyrightable: "Obviously, no principle can be stated as to when an imitator has gone beyond copying the 'idea,' and has borrowed its 'expression.'
In 1978, the Third Circuit heard Franklin Mint Corp. v. National Wildlife Art Exchange, where the plaintiff alleged a painter's work for the defendant was so similar to one it had previously commissioned as to be infringing.
Judge Joseph F. Weis Jr. wrote:[26] Troublesome, too, is the fact that the same general principles are applied in claims involving plays, novels, sculpture, maps, directories of information, musical compositions, as well as artistic paintings.
Isolating the idea from the expression and determining the extent of copying required for unlawful appropriation necessarily depend to some degree on whether the subject matter is words or symbols written on paper, or paint brushed onto canvas.He also observed that under the distinction, a painter's copyright might be dependent on how stylized their work was, with a more realism-oriented artist like the one whose works were at the center of the instant case having a more difficult case for copyright infringement than the Impressionist Monet.
In a case a few years later holding that the television series The Greatest American Hero did not infringe on the copyright for live-action depictions of Superman since the caped, flying superhero on the show had many significant differences, Judge Jon O. Newman of the Second Circuit commented that adaptations from a textual medium to a visual one created additional problems in resolving idea-expression questions since the former is meant to be perceived linearly while the latter is taken in in its entirety.
[27] In 2005, considering Mannion v. Coors Brewing Co., where a photograph was alleged to have been imitated too indistinctly, Judge Lewis A. Kaplan of the Southern District of New York recounted the earlier cases and elaborated on those difficulties:[28] ... [I]t makes sense to speak of the idea conveyed by a literary work and to distinguish it from its expression.
For one thing, it is impossible in most cases to speak of the particular "idea" captured, embodied, or conveyed by a work of art because every observer will have a different interpretation.
But this question is precisely the same, although phrased in the opposite way, as one that must be addressed in all infringement cases, namely whether two works are substantially similar with respect to their protected elements.
Conversely, if the two photographs are not substantially similar in the rendition and creation of the subject, the distinction between idea and expression will be irrelevant because there can be no infringement.