17.4 COPYRIGHT—SUBJECT MATTER—IDEAS AND EXPRESSION
(17 U.S.C. § 102(b))
Copyright law allows the author of an original work to stop others from copying the original expression in the author’s work. Only the particular expression of an idea can be copyrighted and protected. Copyright law does not give the author the right to prevent others from copying or using the underlying ideas contained in the work, such as any procedures, processes, systems, methods of operation, concepts, principles or discoveries. [In order to protect any ideas in the work from being copied, the author must secure some other form of legal protection because ideas cannot be copyrighted.]
Copyright law does not protect facts and ideas within a work. SOFA Entm’t, Inc. v. Dodger Prods., Inc., 709 F.3d 1273, 1279 (9th Cir.2013). The Ninth Circuit has explained that "[t]he real task in a copyright infringement action . . . is to determine whether there has been copying of the expression of an idea rather than just the idea itself. . . . Only . . . expression may be protected and only it may be infringed." Sid & Marty Krofft Television v. McDonald’s Corp., 562 F.2d 1157, 1163 (9th Cir.1977) (implying that idea-expression dichotomy is issue of fact for jury, superseded by statute on other grounds by 17 U.S.C. § 504(b), see Unicolors, Inc. v. Urban Outfitters, Inc., 853 F.3d 980, 985 (9th Cir. 2017); see generally Golan v. Holder, 132 S. Ct. 873, 890 (2012) (explaining idea-expression dichotomy of copyright law). Instructing the jury on substantial similarity can cover this aspect of copyright infringement.
If the plaintiff is not the author of the work, this instruction can be modified by substituting the word "owner," "assignee," or "licensee" in the place of the word "author," as is appropriate to the facts of the case.
This instruction can be converted for use as an instruction on a merger defense. See Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1082 (9th Cir.2000) (explaining that merger is defense in Ninth Circuit, rather than issue of copyrightability, as in other circuits). Under the doctrine of merger, if the idea and the expression of that idea merge, the expression will only be protected by copyright law if the alleged copying of that expression is "nearly identical." Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1444 (9th Cir.1994). The merger doctrine "will not protect a copyrighted work from infringement if the idea underlying the copyrighted work can be expressed in only one way, lest there be a monopoly on the underlying idea." Ets-Hokin, 225 F.3d at 1082; see also CDN, Inc. v. Kapes, 197 F.3d 1256, 1261 (9th Cir.1999).