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17.3 Copyright—Subject Matter—Ideas and Expression (17 U.S.C. § 102(b))

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Copyright law allows the author of an original work to prevent others from copying the way or form the author used to express the ideas in the author’s work. Only the particular [way of expressing] [expression of] an idea can be copyrighted. 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].

The right to exclude others from copying extends only to how the author expressed the ideas in the copyrighted work. The copyright is not violated when someone uses an idea from a copyrighted work, as long as the particular [way of expressing] [expression of] that idea in the work is not copied.


Copyright law does not protect facts and ideas within a work. See Shaw v. Lindheim, 919 F.2d 1353, 1356 (9th Cir.1990). This instruction explains the idea-expression dichotomy of copyright law. The Ninth Circuit has explained that "the 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 the idea/expression dichotomy was an issue of fact for jury). 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.

Supplemental Instruction

This instruction can be converted for use as an instruction on a merger defense. 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 was "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 v. Skyy Spirits, Inc., 225 F.3d 1068, 1082 (9th Cir.2000) (in the Ninth Circuit, doctrine of merger is a defense, rather than an issue of copyrightability as in other circuits). See also CDN, Inc. v. Kapes, 197 F.3d 1256, 1261 (9th Cir.1999).