Merger Doctrine Question -- Idea/Expression

A colleague has asked me to explore whether the merger doctrine described in Hart v. Dan Chase Taxidermy, 967 F. Supp. 70 (NDNY 199), is supported by other similar cases, particularly where a derivative image in question depicts a specific animal. Also, is it settled that merger an issue of infringement rather than copyrightability? Authority either way would be useful.

Put another way, suppose Ms. Y uses Mr. X's copyrighted photo of a cheetah in air-borne in mid-stride, and reduces it to a silhouette of the cat. If she then modifies it in several other respects that are clear only upon close inspection, can she use that image on her brand of tennis shoe without violating the photographer's copyright. Is the concept of the cheetah in mid-stride the kind of "idea" that is outside copyright protection, or is the tennis shoe image a derivative work that infringes? Does it matter that the "idea" could be from perceived from more than one angle?

All comments welcome.  

Steven M. Hoffer
worldvu[_at_]well.com
95 Mariner Green Dr.
Corte Madera, CA 94925 Received on Wed Nov 11 1998 - 06:34:28 GMT