The Five W’s of Merger

Abstract

On October 4, 2019, Columbia Law School's Kernochan Center for Law, Media and the Arts hosted a symposium titled “Exploring Copyrightability and Scope of Protection” that was cosponsored by the U.S. Copyright Office. This article is based on a transcription of remarks from a panel on the scope of copyright protection. It focuses on fundamental questions of merger, including from whose perspective — the copyright owner for the alleged infringer — at what point in time — the creation of the work or the alleged infringement — and where in the copyright infringement analysis should merger be considered. It concludes that, when merger is considered based on its intended purpose, its role in determining the scope of copyright protection makes the most sense at the time that the work is created and the from the perspective of the copyright owner.