IP Law Daily Substantially similar teaching materials did not infringe competitor’s copyrighted lessons
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Tuesday, March 8, 2016

Substantially similar teaching materials did not infringe competitor’s copyrighted lessons

By Jody Coultas, J.D.

Molly Manners, LLC did not infringe competitor Civility Experts Worldwide’s copyrighted manners lessons, according to the federal district court in Denver (Civility Experts Worldwide v. Molly Manners, LLC, March 7, 2016, Martinez, W.). Although Molly Manners’ lesson materials seemed to be copied from Civility Experts’ materials, the material was not protectable under the Copyright Act. Also, small changes made by Molly Manners were sufficient to avoid infringement liability.

Civility Experts offers lesson manuals for teaching manners to children for which it has registered copyrights. Competitor Molly Manners purchased a copy of Civility Experts’ lessons sometime in 2011, and incorporated at least portions of those lessons into three of Molly Manners’ own lesson manuals.

In 2013, Civility Experts accused Molly Manners of copyright infringement. The parties entered into a settlement agreement in which Molly Manners agreed to stop using any of Civility Experts’ copyrighted content. Civility contends that three of Molly Manners’ lesson manuals continue to infringe Civility Experts’ copyrights and are in violation of the settlement agreement.

Scope of comparisons. Civility Experts’ practice of comparing one of its Lessons to a combination of Molly Manners lessons faced no fundamental legal obstacle, according to the court. An obvious infringement of a copyrightable work could not avoid infringement simply by being broken up into a trilogy. Civility Experts’ lessons could not be viewed as a discrete, continuous series in the same sense as a television series, the court explained. Accordingly, to the extent Civility Experts was attempting to establish an actionable violation by comparing one Molly Manners lesson to multiple Civility Experts lessons, the court disregarded it. The court also declined to explore whether multiple Molly Manners lessons, taken together, infringed multiple Civility Experts lessons, taken together.

Infringement. Civility Experts’ business model—including its branding, price, and number of products—was not protected because it was, at most, an “idea, procedure, process, system, method of operation, [or] concept,” the court said.

The topical selection and arrangement of Molly Manners’ Nice is Right lesson manual also did not infringe Civility Expert’s lesson, according to the court. Civility Experts’ Macaroni and Please lesson was a collection of thirty manners lessons aimed at children ages 3–7, with each lesson designed to require no more than ten minutes of instructional time, followed by up to 50 minutes of worksheets and other activities. Molly Manners’ lesson guide, Nice is Right, presented a series of eight lessons aimed at ages 3–7, presented in 30–45 minute class sessions over 6–8 weeks. Although it was obvious that Molly Manners’ lesson overlapped with Civility Experts’ lesson on numerous subjects, they were not an original selection of subjects. Only original selections or arrangements of facts or ideas are protectable. Any workshop on manners and etiquette, especially one aimed at children, would likely cover these sorts of topics. Also, Nice is Right utilized a perceptibly different approach to its arrangement as compared to Macaroni and Please. The similarities in arrangement were of the type that would be common to any workshop or seminar.

The fact that Molly Manners’ lesson guides contained the same selection of topics as Civility Experts’ lesson manuals did not weigh in favor of finding copyright infringement, according to the court. When nonfiction works are at issue, court must filter out the nonprotectable components of the product from the original expression. This filtering often involves the doctrine of scenes a faire. Under scenes a faire, courts “deny protection to those expressions that are standard, stock, or common to a particular topic or that necessarily follow from a common theme or setting.” Molly Manners’ guides covered many topics also covered in Civility Experts’ guides, but all of these topics were scenes a faire in manners and etiquette training.

Civility Experts’ various lists of comparisons included a smattering of allegedly unique items from its own lessons that were supposedly also found in Molly Manners’ lessons. However, suggesting that a teacher play the game “hot potato,” which has existed for generations, with students was not original, and the utilization of the game in the parties’ lessons were significantly different. The court also declined to declare Civility Experts’ Golden Fork Award to be a protectable expression, as it would create rights similar to that of a trademark or service mark. Although anyone could award students for using good table manners (because a bare idea cannot be copyrighted), only Civility Experts could use the “Golden Fork Award” name. All of Civility Experts’ allegedly unique ideas were not protectable, according to the court.

Molly Manners did not infringe Macaroni and Please, according to the court. Civility Experts claimed that certain portions of Nice is Right and Kool to Be Kindwere lifted from its Macaroni and Please. The substantial similarity inquiry asks “whether the accused work is so similar to the plaintiff’s work that an ordinary reasonable person would conclude that the defendant unlawfully appropriated the plaintiff’s protectable expression by taking material of substance and value.” The means of teaching proper greetings by way of counterexamples were not so limited or standardized that the doctrines of merger or scenes a faire would leave Macaroni and Please’s language unprotectable. However, Civility Expert could not copyright the concept of a table-setting memory device cast in the form of a story, the idea of making advice about handshakes more memorable through tactile reinforcement, or the literal wording of the various lists of encouraged or discouraged behavior.

With no valid comparisons between Molly Manners’ lessons and Civility Experts’ Confidence is Cool, the court held that Molly Manners did not infringeConfidence is Cool. The arrangement of Civility Expert’s Proud to Be Polite showed at least a minimal amount of creativity, and the words needed to express these bits of advice were not so limited that the merger doctrine excused verbatim copying. However, no reasonable jury could conclude that any of copied sections, individually or collectively, were “of great qualitative importance to the work as a whole,” the court decided.

Conclusion. There was overwhelming evidence that Molly Manners copied from Civility Experts lessons, and Civility Experts could even be able to show that Molly Manners intentionally set out to rework Civility Experts’ lessons. However, facts, idea, and concepts are not protectable under copyright law, and protection of instructional literature is difficult to demonstrate. Instructional materials often run up against the prohibition of copyrighting facts, ideas, concepts, etc., the merger doctrine, and the scenes a faire doctrine. Even seemingly trivial changes can prevent copyright liability, even with respect to fairly original instructional materials.

The court urged the parties to seriously consider private mediation, a settlement conference before the magistrate judge, or some other form of alternative dispute resolution to be held in the near future given that Molly Manners may have violated the parties’ settlement agreement.

The case is No. 15-cv-0521-WJM-MJW.

Attorneys: Michael D. Schwartz (Schwartz Law Firm) for Civility Experts Worldwide. David James Nowak (White & Steele, PC) for Molly Manners LLC.

Companies: Civility Experts Worldwide; Molly Manners, LLC

MainStory: TopStory Copyright ColoradoNews

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