SEEN ONE, SEEN THEM ALL - MAKING SENSE OF THE COPYRIGHT MERGER DOCTRINE

The copyright merger doctrine stems from the difficulty in distinguish ing the expression of an idea from the idea itself. Because copyright protects the former but not the latter, the doctrine is invoked whenev er the ways of expressing an idea are so few that the expression and t he idea have ''merged'' to become essentially one and the same. Courts respond to a defendant's successful showing of merger by withholding copyright protection altogether, reasoning that it would be unjust to confer upon the copyright proponent the benefit of a monopoly over an entire idea. In practice, however, the doctrine has been a failure. Es pecially when a copyrighted work and an alleged infringement are subst antially similar in all relevant respects-that is, when a defendant is most likely to raise the defense of merger-no court has yet devised a test to help distinguish where the idea ends and its expression begin s. The end result is confusion in the law, an inability for practition ers to predict case outcomes, and an increase in litigation. In this C omment, Scott Abrahamson argues that reliance upon the idea-expression paradigm as an analytical tool is misplaced because its conclusory la nguage is inadequate to the task. Given that copyright regulates the e conomics of an otherwise free-marker economy, courts should adopt a pr actical approach that expressly allocates resources between the two pa rties as well as within the larger economic system. A positive review of the relevant case law suggests that at work in these cases are four factors: (1) balance of costs; (2) ability to recoup costs; (3) metho d of operation; and (4) scope of the marketplace affected. Despite the faults of the merger doctrine, however, case outcomes generally refle ct a judicious allocation of resources. This Comment accordingly seeks not to supplant the idea-expression gloss, but merely to supplement i t.