A Heavy Burden : Proper Application of Copyright's Merger and Scenes a Faire Doctrines

One of the least clearly defined concepts in copyright law is the idea/expression dichotomy, which states that protection for works only extends to expression, not ideas. It has been very difficult to distinguish between these two concepts. Complicating matters, courts have disagreed in infringement actions over which party should bear the burden of proof regarding the idea/expression dichotomy in general. Courts have classified it as a question of bar to copyrightability or defense to infringement, but the real question is who bears the burden of proof. Should the plaintiff be required to show that his work consists of protectible expression, rather than unprotectible ideas, or should the defendant be required to show that what she took from plaintiff was not protectible? Because of the difficulty in distinguishing between idea and expression, the party who ultimately bears the burden is in trouble. quot;Whoever has to prove the unprovable facts is likely to lose.quot; The courts' present disagreement ought to be resolved in favor of increased expectations for potential plaintiffs. In order to best serve the interests of copyright law, in light of the ever increasing statutory protection afforded copyright owners and the plain language of the copyright statute itself, courts should require plaintiffs to show that their work is protectible despite the merger doctrine and scenes a faire