This won’t be a political post, but on this April 15, tax day, I want to say that I hate taxes. (Okay, tax day is actually the 18th this year, but that’s Mythology Monday, so I’m sticking with the traditional tax day for the sake of my blog.) To keep this from becoming too serious, I’ll ignore my hate and instead focus on an anecdote that I sometimes share with clients when they inappropriately ask me for tax advice. I’m not permitted to give that kind of advice, but as most of them don’t respect that, this 100% true story stops their request immediately.
In law school, I took Personal Income Tax because I figured it’d fix my ignorance of tax law.
The final exam was open book, and I got a hold of an outline prepared by three accountants taking the class. The outline was exceptionally well-organized and covered all the material. Nevertheless, after the exam, I went to Ranalli’s (Adams St. location since closed), which was the favored watering hole of Chicago-Kent students in the mid- to late-90s. When I arrived, I announced, “Well, I didn’t think it would happen, but I finally failed a class in law school!”
I didn’t fail, but the C+ I got was my lowest grade in four years at Kent. Did I have the best material available? Yes. Am I stupid? No. Then why did I do so poorly?
Hate is a powerful emotion aaaaaannnnnndddddd I’m back to hate.
Over a week ago — I’m waaaaay ahead of schedule on writing my posts — I finished a massive and tedious binging of Boston Legal. I had never seen the show before, but considering my love of so many of those actors, and the occasional scene hitting my social media streams, that’s surprising, but I’ve remedied it.
To start, I’ll say that I’m most certainly not one of those people that complains how badly movies and TV shows get things wrong. I have a physics degree. I’ve worked in software engineering for almost a decade. I have a law degree, and have worked as an attorney for more than twice that time. Some of you have medical degrees. Many of us have practical, professional experience that makes us experts in our respective fields. Every single expertise seems downright ridiculed by entertainment media, and sometimes experts get uptight about that. I don’t. I get it. Most people are not experts in any given area, so most people don’t notice the ridiculousness in any given show. That means that, even if what’s presented is utterly ridiculous, most viewers won’t know or won’t care. Moreover, experts in one area will be annoyed by only those shows getting their expertise wrong, meaning that they’ll usually wind up in the category of not knowing or caring. It’s about playing the odds, and the odds are stacked in favor of drama over reality. That makes sense. There’s nothing wrong with it.
But c’mon! Sneaking firearms into court and firing them off, and not getting disbarred and thrown in jail!? Are non-attorneys not annoyed by that?! Really?! There were just so many insane things that happened that would land these “lawyers” in jail long before the state bars could disbar them, though that would happen eventually.
But okay, okay! It’s fine. It was a fun show. The political pontificating was annoying at times, but it helped me relive the emotion of those days which are over a decade behind us. It genuinely triggered my nostalgia. Having my favorite actor, William Shatner, as one of the main characters certainly helped.
I had a discussion during Winter Vantasy: The Return with Erik with respect to Wizards of the Coast’s (“WotC”) new stat block format. The new stat block has some rearranging of material, but that wasn’t the subject matter of the conversation. We were discussing the removal of spells and spell-like abilities from the new WotC stat block. Erik doesn’t like it and referenced my concerns about the complexity within the current stat block format. Erik referred to my position as “ridiculous,” but WotC’s switch proves that Erik’s view is the minority one. I didn’t have a large enough internet footprint to prove it on my own. More importantly, however, Erik understandably mischaracterized my position. I wasn’t saying that the Monster Manual got it wrong. In fact, quite the opposite. I’ve mentioned before that I think it’s the best RPG bestiary I’ve ever read. My concern is that WotC didn’t supplement it properly, then attempted to shut me down when I did.
Important Note: I’m not 100% certain that WotC’s stat blocks have been changed in the way we’re all assuming they were. I’ve seen a sample of the new format (below), but it was for a low level creature whose stat block would be simple anyway. Thus, this discussion comes from a place of partial ignorance, and I may get some things wrong. Take this all with a grain of salt.
When you look at a complex stat block (e.g., Mummy Lord), unless you have a truly eidetic or nearly eidetic memory, there’s no way you can effectively run that stat block as written, especially if the encounter is a combat encounter. There’s too much going on, and what we’ve all seen (and I actually got Erik to admit to an extent!) is that every DM just gives up and resorts to using the common spells they all know: Magic Missile, Hold Person, Fireball, Counterspell, etc., even for higher spell slots. Why? Well, first you must figure out which sourcebook contains the spell in order to look it up. If it isn’t a Player’s Handbook spell, you may not know, so you wind up searching through a couple of books before finding the correct one. Second, you must read the spell, which could take a while if it’s not one like Fly. If it were a spell like Fly, you may not have to look it up at all, which is why Fly is one of the spells to which DMs eventually resort. Something like Control Weather has far too much going on for most people to memorize. Erik is sometimes willing to do that, but there are very few players whose eyes don’t glaze over with boredom during that long process. Moreover, if you’re playing with a real-world time limit (e.g., convention play), that’s certainly not time you have to waste. At the table, the spell’s details should be right in front of your face. I don’t understand why anyone would disagree, and those with eidetic memories shouldn’t care one way or the other.
That said, in theory these stat blocks provide a framework for the culture of that creature. (In my second stat block/copyright post, I mathematically proved that WotC fails to do so, but that’s not relevant here.) So, the Monster Manual itself shouldn’t eliminate that complexity (I know; WotC can’t win with me), but rather use it as a framework for creating specific monsters within that cultural framework but suited to the encounter at hand. That last sentence is a tough read, so here’s an example. (I’m going from my memory, which is not eidetic.) The Couatl has both offensive and divination spells. If your encounter involved the Couatl using Detect Thoughts to aid in an interrogation, then you wouldn’t need the Couatl to have Shield. On the other hand, that position would be reversed if the Couatl were to engage in combat against the PCs (i.e., it would need Shield but I don’t think, from memory, Detect Thoughts would have value). The Monster Manual stat block provides you the spells a Couatl needs for all situations, but not every Couatl will appear in all situations. In fact, I doubt any will unless the Couatl is a PC, but a Couatl PC is clearly not what I’m talking about. For NPCs at the table, you need only the spells that that specific NPC will need in that specific encounter. Everything else muddies the water. However, it’s good that all situations are covered by the general stat block in the Monster Manual, because that’s what you use to build such table-based stat blocks.
So, in my ideal world, this is how WotC (or any game designer with sufficient resources) should approach their stat blocks. Make them as complex as WotC did in the Monster Manual, using only spell names as shorthand to make the stat block printable, but modify their online tools with check boxes allowing DMs to pick which spells and spell-like abilities appear on a final stat block at the table (whether in hard or soft copy). For that final stat block at the table, make sure that the spell descriptions are presented fully so that there’s no need to resort to multiple hardcopy resources to know details that are relevant to the combat, but at the same time make sure that the stat block isn’t cluttered with irrelevant details. If there are no online tools, provide one-stop stat blocks for all NPCs (as I did) as a PDF. They could also provide PDFs containing generic spell entries with coded placeholders such as, “Magic Missile, Atk: [L]+3+IntMod, . . . .” (or whatever it is), so that DMs could copy and paste them into their own stat blocks as needed. All my project did was the one part of that process that I could, which is something WotC didn’t do.
I fully appreciate that some (most?) game designers can’t do this. Online tools are a huge investment of time and resources they may not have, but some in the gaming community do. Game designers simply need to stay out of the way and allow the community to do that heavy lifting for them. On the other hand, WotC has both the time and resources to create this ideal that appeals to the most people, but they’re still getting it wrong, probably because there’s more profit in selling a new hardcopy (which I suspect will be very good nonetheless).
So yeah, WotC can’t win with me, but only because they’re choosing to lose. We’ll see how the final product shakes out.
Blog posts cannot substitute for legal advice. If the topics discussed in this post are relevant to a real case you have, please consult an attorney.
I’m designing a database for 1st Edition Dungeons & Dragons and am close to finishing the data entry on spells. This brought a copyright issue to the forefront. Characters can be copyrighted. This isn’t a controversial position. However, the name of a character is not copyrightable, and unless a name is used as a brand for your line of products, it doesn’t even receive the (much weaker) protection of trademark. So why does everyone remove proper names from spell names when referencing D&D spells?
Copyrighting a Single Word or Short Phrase
While there is no “bright line” rule stating a minimum number of words necessary to secure a copyright, it’s well settled that a short phrase is not copyrightable. Either they lack tiny amount of creativity necessary for copyright (thus likely representing independent creation) or the merger doctrine applies. A simple Google search will uncover a multitude of articles supporting this notion.
Only nothing at all is more minimal than a single word, so there’s no doubt (outside of Poland) that a single word can’t be copyrighted. But even a short phrase, such as the name of a spell, can’t be copyrighted, especially where it’s descriptive of the mechanics of the spell (mostly the case).
If Twelfth Night were copyrighted, it is quite possible that a second comer might so closely imitate Sir Toby Belch or Malvolio as to infringe, but it would not be enough that for one of his characters he cast a riotous knight who kept wassail to the discomfort of the household, or a vain and foppish steward who became amorous of his mistress. These would be no more than Shakespeare’s “ideas” in the play. . . . It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.
45 F.2d 119, 121 (2d Cir. 1930). This has since become known as the “well delineated character” test.
Can a spy be protected? Of course not. What if that spy uses sex as a tool of the trade? Don’t all spies (at least in fiction) do that? How about if he’s a martini drinker? Hmm, that sounds familiar. “Shaken not stirred”? Well. . . . Eventually, we get to the specific character of James Bond, and he’s certainly a copyrighted character, but it took a bit of detail beyond his name to get there. If I created a fictional character of James Bond who was an accountant, I’d be just fine. In fact, I could even have him joke, “I’m not that James Bond.” I’m not using Ian Fleming’s James Bond, just referencing him, and to the extent James Bond is trademarked, readers will understand from context that I don’t have the endorsement of whoever currently owns the character.
The less common, “story being told” test isn’t relevant here, but in case you’re interested, see Warner Bros. Pictures v. Columbia Broadcasting Sys., 216 F.2d 945 (9th Cir. 1954), cert. denied, 348 U.S. 971 (1955) (“It is conceivable that the character really constitutes the story being told, but if the character is only the chessman in the game of telling the story he is not within the area of the protection afforded by the copyright.”).
Elsewhere when discussing the precise boundaries of copyright as it related to plays, the Nichols Court went on to add that, “[n]obody has ever been able to fix that boundary, and nobody ever can.” Nichols at 121. That makes copyright hard, but it’s not impossible, and sometimes it’s even easy. A name cannot be protected by copyright, even within the context of a spell name of a few words.
Tenser’s Floating Disc
So why do so many of you seem to think that you’re avoiding copyright infringement by avoiding writing, “Tenser’s Floating Disc,” “Mordenkainen’s Magnificent Mansion,” and “Tasha’s Hideous Laughter”? Based solely on the text of the spell as written, can you tell who Mordenkainen is? Is Mordenkainen the wizard that wrote the spell? The wizard’s significant other, child, or pet? The name of the Wizard’s favorite watering hole anthropomorphized into the owner of a mansion? Even if the original spell as written by TSR contained the answers to such questions in sufficient detail to flesh out the character (it didn’t even try), a reproduction of the spell not including such information, but rather limited to the spell’s mechanical effects, wouldn’t infringe on the character of Mordenkainen just by using the name. The name isn’t what’s copyrighted; the combination of several traits defining the character are, but they’ve been left out.
Seriously? You think WotC can restrict use of the name, Tasha?
This is as ridiculous as, for example, using the word “Forgeborn” for “Warforged” as if WotC owns the word, “Warforged,” and that use of “Forgeborn” relieves the writer of any infringement of WotC’s text describing the species. Such a writer is focusing on the wrong thing. Think of it this way: If you think that dropping the name off of the spell cures your text of copyright infringement, then you concede my point that spell text describing the mechanical effect of a spell within the context of an RPG isn’t usually copyrightable. Great! However, you then must be thinking** that the name itself is where the copyright lies. That can’t possibly be true. It flies in the face of every knowledgeable commentator (again, outside of Poland) that’s ever addressed the issue.
** Unless, of course, you’re still under the mistaken impression that the OGL is somehow a valid contract, and that its terms, if taken seriously, wouldn’t constitute copyright misuse. But if you really want to know why that’s silly, you’ll have to read that long post.
There’s absolutely no legal reason not to use those names in spells, and it doesn’t hurt WotC at all to use them (other than perhaps robbing their arrogant legal department of their hubris). Why is this important? Because there are too many misconceptions about copyright law that have had far reaching consequences to the gaming industry and the gaming community in general. The text of the Open Gaming License and System Reference Documentcollectively foster this misinterpretation, and I suspect (can’t prove) that’s an intentional scam. If WotC legal gets you to focus on the word, “Tasha,” but does nothing to stop you from copying the text of the spell, then you still may be infringing whatever copyright they arguably have. If you do something that’s 100% legal later down the road, but it’s something they don’t like, they can go after you for that infringement. As I’ve discussedelsewhere, this can often lead to copyright misuse, but most gamers aren’t sophisticated or wealthy enough to hit back on those grounds. More importantly to the community as a whole, while using these names in spells is not creative on your part, your misconceptions eventually lead down the road of stifling your own creativity. The purpose of copyright is to promote creativity. When copyright law stifles creativity, its entire purpose vanishes, in which case we may as well not even have copyright.
You can’t know what you can’t do unless you also know what you can do.
Sorry, but it’s time for another serious and long post.
I came across an article from the Stanford Graduate School of Business last week. It cites a study that demonstrates the importance of humor to the human psyche, which in turn correlates (and presumably is the cause of) health benefits. This doesn’t surprise me at all. The subject of this post is something that wasn’t the immediate concern of the author but is quite important and was lurking in his own text.
Scrolling down a bit, you’ll find a graphic containing four quadrants. I’ve recreated the graphic here using the advanced graphic techniques of MS Word.
This chart sums up the arguments of the author. It says a few things that are relevant. First, it claims that making jokes is a good thing even if you bomb. Everyone bombs, but people respect the effort. As I’ve stated before, I have no disagreement with this. You can and should bomb as long as you learn from the mistake. Second, it states that the degree to which you generate laughter is irrelevant if the joke itself is inappropriate. In theory, I agree with this, but I have a real problem with the direction Americans are going in labeling everything as offensive. Case and point:
Clearly, if your audience is a room full of Klansmen, then you can bring down the house and still be a villain as the chart states. However, most audiences aren’t 90% or better Klansmen, yet there’s a horrible trend towards labeling everything as offensive. To justify the position, the habitually-offended simply label anyone that laughs at anything they don’t like as a Klansman, Nazi, or anything else that allows them to mask their unreasonable offense as reasonable. This, of course, leads to real harm to people’s lives, but I’m not going to dive into that. I’m instead going to point out two other consequences that concern me: Killing comedy by limiting its subject matter, and a more general problem (beyond comedy) of reasonableness transforming from a community standard to an individual standard. As to the first issue, no where was this more apparent than the show, Brooklyn 99.
Limiting Subject Matter
After seeing tons of YouTube videos containing various characters’ best moments, I decided Brooklyn 99 was probably my kind of show, so it became the latest binge watch for me. It’s clear that the writers were very talented. There were funny jokes, many characters were endearing, and there were some recurring themes (e.g., the Halloween heists) and wonderful catchphrases that these writers wisely knew not to overdo (a common error among their colleagues).
That’s great, but after five seasons, Fox cancelled it. Many were incensed, but it was cancelled because the ratings were poor. After a Star Trek-esque fan campaign, it was then picked up by NBC, but the coming 8th season will be its last. This despite the network change inevitably drawing in at least some viewers that had never seen it when it was on Fox. Despite the vocal minority of diehard fans, the show clearly couldn’t keep anyone’s attention for long. Why not? Because, contrary to the assertion of the linked article (citing writer Michael Lewis), writing jokes today absolutely carries a risk, and the writers didn’t want to bear that risk. It was clear that they were going out of their way to walk the tightrope of avoiding outrage at the hands of this vocal, minority (some of whom wouldn’t necessarily be fans of the show), but ultimately that small audience can’t support the show. When the habitually-outraged tie the hands of comedy writers, we get a modified chart.
Very little is considered appropriate by the habitually-outraged, and that small sliver of acceptable comedy that’s left can’t maintain anyone’s interest for very long. I finished it only because I can’t help myself. Once I start a task, whether business or personal, I have to complete it, which is why I generally don’t binge-watch TV shows if I see they have that many seasons. I took a chance on this one and was ultimately disappointed in the last few seasons. Despite its several strengths, it became a chore to finish it, and not because it jumped the shark. It never reached such a height. Rather, it simply grew into a tedious retread of boring, unchallenging stories because the jokes had almost no chance of offending anyone. Even where it comes to non-comedic material, it was predictable. If you didn’t know “whodunnit?” as soon as the bad guy first hit the screen, you’re an idiot. The villains were all telegraphed because the formula was always the same. Moreover, I wanted to throw Charles, Hitchcock, and Scully out a window 30 stories up, though that started within a couple of seasons. They were frustrating characters.
But killing comedy is merely a symptom of an insidious disease.
The Standard of Reasonableness
Everyone is offended by something, and that’s fine, but too often I hear the line, “You have no right to tell me whether I’m offended.” The fact that people say that means they’re missing the point. Absolutely no one is doubting you taking offense. What we’re saying is that you’re being ridiculous for doing so. But even that isn’t the problem. It would be utterly ridiculous for you to be offended by me wearing a blue shirt simply because your dad died while wearing an orange shirt (the other end of the color wheel), but it’s okay if you are. You can’t help that. Humans are emotional creatures, and certain associations will always result in illogical reactions. However, you shouldn’t impose that offense on me by demanding I always wear an orange shirt for the rest of my life.
And that’s the crux of problem. Any one element that’s deemed offensive by the online mob is composed of a miniscule percentage of people (some of whom aren’t tied to the subject matter at hand), but everyone is afraid to incur the wrath of that mob. Moreover, because these internet tough guys aren’t content with just changing the channel, but rather insist everyone get in line with their sensibilities, far too much content is labeled taboo for everyone, and we’re left with the modified chart similar to the one above for all areas of life, not just comedy. If you disobey, you’re given a horrible label that, without being questions, can cause you to lose your job, friends, and even family. This isn’t imposing accountability; it’s imposing the insecurity-driven whims of the individual on all of us. Throughout history, vigilante mobs have always swept up more innocents than the guilty because there are no protections from false accusations.
This is a troubling trend that those currently on that side are blind to. Rather than “reasonableness” being defined by the community, it’s being defined by each person on an individual basis. Going back to my crass example, if Mary’s dad died wearing a blue shirt, and Mary gets to define for me what’s reasonable, then I always have to wear an orange shirt. However, Joe’s dad died while wearing an orange shirt, so Joe demands I always wear a blue shirt. Then there’s Sally, who’s dad died while trying to break the Guinness Book of World Records record for wearing the most shirts at once (it’s 260, and as far as I know, Ted is fine), and she demands I wear no shirt at all. Finally, there’s Aloysius, and he demands I always wear a shirt with both blue and orange in it because of some other insanity I’m too lazy to invent. So, no matter what choice I make, I’m always going to offend three (a majority) of these four people, even though the majority (three) of all five of us aren’t offended by whatever choice I make. This places me in an impossible position, even though I’m not addressing the demands of 7.5 billion humans, 325 million Americans, 8.5 million Virginians, 1.1 million . . . Fairfax Countyans(?), or even 47,000 McLeananites (copyright 2021, me [not really]). Use any of those numbers, and seemingly ordinary actions or words will result in the same sort of no-win scenario. This is precisely why reasonableness must remain a community standard. We, not a few habitually-outraged, internet tough guys, should set that standard.
As bad as tyranny by the majority is, tyranny by the minority is much, much worse. We strike that balance legally by having a Constitutional democracy where a supermajority (still democratic!) creates fundamental rights that supersede the passing whims of the cops or even the legislature, protecting the individual, but still ultimately subjecting us all to the broader strokes of the majority. Your right to impose your insecurities upon the rest of us by suppressing speech is not the sort of fundamental right that’s necessary to preserve your individual dignity. Or at least it shouldn’t be, because it in fact suppresses an actual fundamental right in the internet age, where Town Square is now in the hands of the private sector. But if we can’t enjoy even jokes, there’s no hope for finding compromise on more difficult issues.
If you were looking for a miracle cure for what ails us, you’ve come to the wrong blog, but apparently our lives depend on it.
Well, it’s Tuesday, so my second Facebook suspension is winding down. During this “one-day became three-day became four-day” suspension, I was unable to manage my charitable fundraiser for the Juvenile Diabetes Foundation, all because Facebook is afraid of people having opinions (though my expressed opinion was clearly a joke).
I see no reason to delete my Facebook account, because I’m still able to communicate with people via Messenger. After all, the whole point of social media isn’t to solve the world’s sociopolitical problems, but rather to connect. And share cat memes. However, I’m quickly shifting my focus to MeWe. My profile can be found here: https://mewe.com/i/robertbodine1. The problem with MeWe is that it’s not very good for building networks, which, again, is the point of its existence. The only way to find people is to know they’re there. So please, if you’re considering an alternative to Facebook, give MeWe a try, and invite as many people as you can to do the same. I suspect it’s only a matter of time before Facebook runs afoul of antitrust law. You may find yourself making a change eventually.
Facebook should be ashamed of itself, but it isn’t.
Less than an hour ago, I deleted a post from this Twitter account. It’s my daily, automated paper, and because this account is meant to be fun and/or silly, I use every filter at my disposal to make sure nothing too serious appears in that paper. Unfortunately, that doesn’t always work, and today’s paper included articles I simply didn’t want appearing on this stream. That said . . . .
I have to share this bullshit. I just got this message from Facebook.
This is clearly a joke, I can’t imagine why they would even hide the post, let alone give me a 24-hour ban (UPDATE: 3 days now, including my birthday). Ironically, I received this ban on the day I received my first vaccine shot.
Let me remind you of the problem with Facebook, et al. In the old days, the ordinary citizen’s standard means of political discourse was to stand in the middle of town square, get on a soap box, and bitch. Such acts would result in counterarguments from the crowd, but even more importantly the bystanders got to listen and form opinions somewhere in the middle of the lunatics. Because town square is public property, the Free Speech clause protected such discourse. Now the ordinary citizen’s standard is to use social media, and it’s what everyone relies upon for such discourse. The problem is that social media platforms are private property, and even clear jokes can be censored legally. Speech is going to be chilled at a time when we need reasonable discussion — and a sense of humor — the most. Our only recourse will be antitrust law, and Twitter has certainly flirted with that in the Parler case (see the section entitled This Isn’t the End of the World, but It’s No Small Matter), but it’s going to be a long time before that dust settles and the common person’s everyday speech will once again be free.
UPDATE!!!! Facebook has decided to extend my suspension to three days, which means I won’t be able to thank anyone for all the birthday wishes I’m sure to receive on Monday. If you’re reading this, thanks in advance. Also, my MeWe profile is at https://mewe.com/i/robertbodine1. Just sayin’. No reason.
Side note: I tried to use the back door that used to work but apparently no longer does. I posted to Instagram, which shares to Facebook automatically. Unfortunately, my post violated community standards over there. I’m going to try again but with a picture of a kitten. We’ll see what happens.
Facebook should be ashamed of itself, but it isn’t.
I hate courtroom dramas. While I’m not a litigator, I can spot the nonsense when I see it, and legal dramas are always about “drama” first and “legal” last. The same is true for any industry. Some liberties were taken with the story, but based on a little research, this movie largely gets it right. And that story is frustrating. From Wikipedia:
Based on the story of the Chicago Seven, a group of eight defendants charged by the federal government with conspiracy in 1969 and 1970, inciting to riot, and other charges related to anti-Vietnam War and countercultural protests that took place in Chicago, Illinois, on the occasion of the 1968 Democratic National Convention.
The trial was a mess. The judge (ironically) showed nothing but contempt for the defense. All of the charges, including the numerous contempt charges, were overturned on appeal. The Seventh Circuit ordered a new trial, which the Attorney General declined to pursue.
Sacha Baron Cohen was awesome. Joseph Gordon-Levitt was awesome. Yahya Abdul-Mateen II was awesome. Mark Rylance was awesome. Frank Langella was awesome.
The Trial of the Chicago 7 is streaming on Netflix. There’s no reason not to watch this movie. As always, YMMV.
Blog posts cannot substitute for legal advice. If the topics discussed in this post are relevant to a real case you have, please consult an attorney.
This one’s a little dry, but it’s also short.
A copyright protects the expression of an idea. For example, an author can write a poem about springtime, and because the text is sufficiently complex, it can give rise to a copyright as long as there’s at least some reasonable amount of creativity (a.k.a., originality) in that text. However, that doesn’t mean the author now owns the idea of springtime; the author owns only the particular expression of it (and all “substantially similar” variations of it). The reason the idea isn’t protected, but the expression is, should be obvious: If an author copyrighted the idea, then no one else could write about springtime during the life of the copyright. The public must be able to discuss springtime. It’s part of life. (Note: This is also why a single word is never sufficiently complex to earn a copyright. If someone could copyright the word, “spoon,” then the public couldn’t discuss spoons for quite some time.) On the other hand, the author’s particular expression of springtime can be copyrighted because there are a seemingly infinite number of ways for the rest of the public to write about springtime. That is, there are many other options that will allow others to write about springtime while still allowing the author the sole right to copy and profit off of their particularly clever and enjoyable expression, as well as any substantially similar variations of it. This is the essence of copyright.
However, what if there aren’t a seemingly infinite number of ways to express and idea, or what if all the other ways to express it are all substantially similar to one another? This is where the merger doctrine comes into play. In such a case, the expression is said to merge with the idea, such that the expression cannot be copyrighted regardless of how complex the expression is, and regardless of whether the author was actually the first person ever to express it. (In the case of my example of a poem about springtime, that was first done long before the concept of copyright existed.) This is an important doctrine for the reason given above: If not for the merger doctrine, in situations where there aren’t a reasonable number of options available to express and idea, then no one would be able to express it as long as that copyright exists. That is, the copyright would effectively extend to the underlying idea itself. Under current law, the term of copyright is far too long in my opinion, but even if the term of copyright were more reasonable, any amount of time to prohibit expression of an idea is too long. Fortunately, the law recognizes that.
Rob Bodine is a Virginia attorney focusing his practice on real estate and intellectual property law. He’s currently Virginia counsel with Cardinal Title Group, a Virginia title insurance and settlement company. Rob is also a licensed title insurance agent in Maryland and Virginia.