Commodity Settlement Prices Subject To Copyright Merger Doctrine

The U.S. Court of Appeals for the Second Circuit affirmed the district court’s grant of summary judgment and rejected allegations of copyright infringement by the New York Mercantile Exchange (NYMEX) against IntercontinentalExchange, Inc. (ICE). New York Mercantile Exchange, Inc., v. IntercontinentalExchange, Inc., Case No. 05-5585 (2^nd Cir., Aug. 1, 2007) (Katzmann, J.; Hall, J., concurring-in-part).

The dispute boiled down to an attempt by NYMEX to prevent ICE from utilizing NYMEX-generated settlement prices to clear trades. NYMEX claimed that its determination of settlement prices results from independent authorship having at least a minimal degree of creativity, thus entitling the settlement prices to copyright protection. Without reaching a decision on whether NYMEX’s settlement prices were copyrightable, the Second Circuit rejected NYMEX’s allegations of copyright infringement, noting that the merger doctrine, which forecloses allegations of infringement in those instances