Morrissey v. Procter — Copyright

The First Circuit held that copyright cannot protect sweepstakes rules where so few ways exist to state them that protecting the words would lock up the idea itself.

Copyright protects expression, not ideas—but what happens when there is essentially only one way to express an idea? In Morrissey v. Procter & Gamble Co., 379 F.2d 675 (1st Cir. 1967), the First Circuit gave the classic answer. Chief Judge Bailey Aldrich held that a contestant’s sweepstakes rule could not be copyrighted, because the subject was so simple that protecting any one phrasing would let its owner monopolize the only practical ways to state it. In doing so the court crystallized the “merger doctrine,” the principle that idea and expression sometimes fuse so tightly that the expression must be left free for all. Nearly six decades later, it remains the canonical case taught to every copyright student for why some writing, however original, simply cannot be owned.

At a glance

Case: Frank Morrissey v. The Procter & Gamble Co., et al., No. 6882, 379 F.2d 675 (1st Cir. June 28, 1967).
Court: U.S. Court of Appeals for the First Circuit; opinion by Chief Judge Bailey Aldrich.
Posture: Affirming summary judgment for the defendant on the copyright-infringement claim.
Holding: Where the subject matter of a copyrighted text is so narrow that it can be expressed in only one or a very limited number of ways, the idea and its expression merge, and copyright does not protect the expression; the sweepstakes rule at issue was therefore unprotectable.
Significance: The foundational American statement of the merger doctrine, limiting copyright so that protection of expression cannot become a backdoor monopoly over an idea.

Morrissey held a copyright in a set of rules for a promotional “sweepstakes” contest keyed to participants’ Social Security numbers. Procter & Gamble later ran its own similar contest, and one of its rules—Rule 1, explaining how entrants should use their Social Security numbers—closely tracked Morrissey’s wording. Morrissey sued for infringement. The district court granted summary judgment to Procter & Gamble, and the First Circuit affirmed, not because the copying was excused but because the rule was never protectable in the first place.

The idea-expression dichotomy and its breaking point

The bedrock principle, later codified at 17 U.S.C. § 102(b), is that copyright protects an author’s particular expression but never the underlying idea, system, method, or concept. Ordinarily that line is easy to police: there are countless ways to write a novel about a doomed romance, so protecting one author’s words leaves the idea free. But Aldrich identified the breaking point. When the “topic necessarily requires,” if not only one form of expression, then “at best only a limited number,” protecting that expression would do the work that copyright is forbidden to do—it would fence off the idea. The court’s reasoning was structural: copyright is supposed to leave ideas in the public domain while rewarding particular expression. If the universe of adequate expressions is tiny, then granting exclusive rights to a few of them effectively grants exclusive rights to the idea.

Why protecting the rule would monopolize the idea

The heart of the opinion is its arithmetic of expression. A sweepstakes rule explaining how to use a Social Security number is a narrow, functional thing; there are only so many clear, accurate, and complete ways to say it. Aldrich wrote that in such circumstances, “to permit copyrighting would mean that a party or parties, by copyrighting a mere handful of forms, could exhaust all possibilities of future use of the substance.” A competitor wanting to run the same kind of lawful contest would have to describe the same mechanics, and would inevitably land on one of the few available phrasings. If each of those phrasings could be claimed, the first mover could lock rivals out of the idea altogether. Rather than ask whether Procter & Gamble had copied “too much,” the court concluded that “the subject matter would be appropriated by permitting the copyrighting of its expression,” and so the expression could not be copyrighted at all. The copying, in other words, was legally irrelevant because there was nothing protectable to copy.

A doctrine of limitation, not license

It is important to read Morrissey narrowly, as the court intended. The case does not say that rules, instructions, recipes, or functional writing are categorically unprotectable. It says that when the available expression is so constrained that protection would monopolize the idea, merger denies protection. Where a subject admits of genuine creative variation—elaborate game rules, richly written instructions, expressive how-to prose—copyright can still attach to the author’s particular choices. Merger is a safety valve, applied where the idea so dominates the expression that the two cannot be meaningfully separated. Later courts and the Copyright Office built on Morrissey to develop related limits, including the closely allied scenes a faire doctrine (denying protection to stock or standard elements dictated by a genre or topic) and the thin-copyright treatment of compilations and factual works.

Open questions

How few is “limited”? Morrissey spoke of “only a limited number” of expressions but did not fix a count; courts still decide case by case when the options are few enough to trigger merger.
Is merger a bar to protection or a defense to infringement? Circuits differ on whether merger means the work is uncopyrightable from the start or merely that similar expression cannot infringe—a distinction with practical consequences.
How does merger interact with functional works? The boundary between unprotectable merged expression and protectable creative choices in software, forms, and instructions remains heavily litigated.

Implications

For drafters of rules and forms: Do not assume that originality alone secures protection; if a rule can be stated only a few ways, copyright may not reach it.
For competitors: Closely tracking a rival’s functional language can be lawful when the subject permits only a handful of expressions—but the closer a work gets to expressive variation, the riskier copying becomes.
For copyright owners: Protect the parts of a work that admit creative variation; build value in expression that is genuinely chosen, not dictated by the idea.
For litigators: Raise merger early, framed to the specific narrowness of the subject matter; and be alert to whether your circuit treats merger as a copyrightability bar or an infringement defense.

Frequently asked questions

What is the merger doctrine? The merger doctrine holds that when an idea can be expressed in only one or a very small number of ways, the idea and its expression are said to merge, and copyright will not protect that expression. Protecting it would let the copyright owner monopolize the underlying idea, which copyright law forbids.

Why couldn’t Morrissey copyright the sweepstakes rule? The contest rule was so simple and constrained that there were only a limited number of ways to state it accurately. The court held that allowing copyright in such narrow material would let a party exhaust all the practical ways of expressing the rule and thereby appropriate the idea itself, so the rule was not protected.

Does this mean instructions and rules can never be copyrighted? No. The doctrine applies only where the subject is so narrow that expression is nearly dictated by the idea. Rules and instructions with room for varied, creative expression can still be protected; merger denies protection only to the expression that is effectively the sole or near-sole way to convey the idea.