Page:International Code Council v. UpCodes (2020).pdf/64

 IntercontinentalExchange, Inc., 497 F.3d 109, 116 (2d Cir. 2007). “The fundamental copyright principle that only the expression of an idea and not the idea itself is protectable … has produced a corollary maxim that even expression is not protected in those instances where there is only one or so few ways of expressing an idea that protection of the expression would effectively accord protection to the idea itself.” Kregos v. Associated Press, 937 F.2d 700, 705 (2d Cir. 1991) (citation omitted); see also  CCC , 44 F.3d at 68 (“[I]n order to protect the immunity of ideas from private ownership, when the expression is essential to the statement of the idea, the expression also will be unprotected, so as to insure free public access to the discussion of the idea.”).

The Second Circuit considers this doctrine of merger “in determining whether actionable infringement has occurred, rather than whether a copyright is valid … [because assessing] merger in the context of alleged infringement will normally provide a more detailed and realistic basis for evaluating the claim that protection of expression would inevitably accord protection to an idea.” Kregos, 937 F.2d at 705. Because merger turns significantly on a policy-based balance between enabling the progress of