Merger Doctrine, Test Questions, & Yo Momma

I suggested a few posts ago that I wanted to doctrinally attack the spate of cases recognizing copyright in test questions. To lay the groundwork for that, let me take a look at a slightly more interesting phenomenon: copyright in jokes. Does a really short joke or jibe merit copyright protection?

As Justin Hughes has noted, content “owners” are seeking protection for shorter and shorter works. Soon we might even see demands for copyright protection for things like the jokes in the MTV series Yo Momma (which consists of little but one-liners disparaging the contestants’ mothers). (more after the jump)

Now, the IDEA of a joke is clearly uncopyrightable–and “an idea and expression might be [so] thoroughly integrated” that the merger doctrine kicks in. In that case, you can’t express the idea without the expression, so the expression can’t be copyrighted–that would amount to copyrighting an idea, which isn’t allowed.

There seems to be a strong case for saying this of many of the “putdowns” in Yo Momma. There’s just not many ways of expressing the idea of mocking a person “so poor, when I asked to watch the color TV, she said ‘wait, let me get the crayons'” (to use a recent bon mot from the show).

What about test questions? ETS, Kaplan, and Princeton Review copyright their questions and strictly control their distribution. But there is a strong argument that such “works” should not be copyrightable because the idea they express can only be expressed in language (substantially similar to that) of the question. For example, a writer of 40-word “entry instructions” for contests was denied copyrightability because there were so few ways of expressing the idea behind them. This type of reasoning might extend beyond such mechanical instructions to tests whose rationale can perhaps only be understood via exact copying. Consider this example, from Malcolm Gladwell, The Examined Life, NEW YORKER, Dec. 17, 2001.

Critics of the S.A.T. have long made a kind of parlor game of seeing how many questions on the reading-comprehension section (where a passage is followed by a series of multiple-choice questions about its meaning) can be answered without reading the passage. David Owen, in the anti-S.A.T. account “None of the Above,” gives the following example, adapted from an actual S.A.T. exam:

1. The main idea of the passage is that:

A) a constricted view of [this novel] is natural and acceptable
B) a novel should not depict a vanished society
C) a good novel is an intellectual rather than an emotional experience
D) many readers have seen only the comedy [in this novel]
E) [this novel] should be read with sensitivity and an open mind

If you’ve never seen an S.A.T. before, it might be difficult to guess the right answer. But if, through practice and exposure, you have managed to assimilate the ideology of the S.A.T.–the kind of decent, middlebrow earnestness that permeates the test–its possible to develop a kind of gut feeling for the right answer, the confidence to predict, in the pressure and rush of examination time, what the S.A.T. is looking for. A is suspiciously postmodern. B is far too dogmatic. C is something that you would never say to an eager, college-bound student. Is it D? Perhaps, but D seems too small a point. It’s probably E–and, sure enough, it is.

Gladwell’s (and the test prep gurus’) analysis here is subject to debate. But is there any doubt that one could not understand the idea of the question without seeing it re-written verbatim (or, at least, a version closely tracking it?). Apparently the judge in the PMBR case thought so–he claimed that the test writers should have made a much greater effort to avoid copying questions of the test they were prepping. But I tend to think that many questions may be closer to brute facts than expression–i.e., that what is tested is not merely recall and application of some set of rules, but rather a certain capacity to respond strategically to the style of the question. If that is indeed the case, some questions may come closer to ideas than expression–particularly when one is being tested more on one’s response to the question than on any underlying idea the question is based on.