by Ryan Lawson*
Should the copyright law doctrines of merger and scènes-à-faire be evaluated by courts as bars to copyrightability or as defenses to infringement? Ryan Lawson (’17) engages this question, based on his experience writing for the 40th Edition of the NYU Moot Court Board’s Casebook published in December 2016. There is currently a circuit split within the United States Courts of Appeals regarding whether the doctrines of merger — which exempts from copyright protection ideas that can only be expressed in a single or few ways — and scènes-à-faire — which exempts from copyright protection certain ubiquitous, foundational expressive tropes and devices — should be treated by courts either as bars to copyrightability, or as defenses to infringement. This Contribution argues that, in order to resolve this circuit split while preserving the flexibility and strength of these doctrines, courts should adopt a copyright law test that incorporates considerations from the related trademark doctrine of genericide.