Presby Construction v . Clavet, et a l . CV-00-457-M 11/19/01 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Presby Construction, Inc., Plaintiff
v. Civil N o . 00-457-M Opinion N o . 2001 DNH 210 Normand Clavet; Tom Caouette; Geo-Flow, Inc., a/k/a Geo-Flow Leaching System, Inc., Defendants
O R D E R
In this copyright infringement action, plaintiff seeks
injunctive relief, damages, and attorney’s fees based upon
defendants’ alleged copying of a septic system design and
installation handbook. Before the court is defendants’ motion
for summary judgment (document n o . 2 1 ) . Plaintiff objects. For
reasons given below, defendants’ motion for summary judgment is
granted.
Standard of Review
Summary judgment is appropriate when the record reveals “no
genuine issue as to any material fact and . . . the moving party
is entitled to a judgment as a matter of law.” FED. R . CIV. P . 56(c). “To determine whether these criteria have been met, a
court must pierce the boilerplate of the pleadings and carefully
review the parties’ submissions to ascertain whether they reveal
a trialworthy issue as to any material fact.” Perez v . Volvo Car
Corp., 247 F.3d 303, 310 (1st Cir. 2001) (citing Grant’s Dairy-
Me., LLC v . Comm’r of M e . Dep’t of Agric., Food & Rural Res., 232
F.3d 8 , 14 (1st Cir. 2000)). In defending against a motion for
summary judgment, “[t]he non-movant may not rely on allegations
in its pleadings, but must set forth specific facts indicating a
genuine issue for trial.” Geffon v . Micrion Corp., 249 F.3d 2 9 ,
34 (1st Cir. 2001) (citing Lucia v . Prospect S t . High Income
Portfolio, Inc., 36 F.3d 170, 174 (1st Cir. 1994)). When ruling
upon a party’s motion for summary judgment, the court must
“scrutinize the summary judgment record ‘in the light most
hospitable to the party opposing summary judgment, indulging all
reasonable inferences in that party’s favor.’” Navarro v . Pfizer
Corp., 261 F.3d 9 0 , 94 (1st Cir. 2001) (quoting Griggs-Ryan v .
Smith, 904 F.2d 112, 115 (1st Cir. 1990)).
Factual Background
2 The following facts are undisputed. Defendant Geo-Flow
Leaching System, Inc. (“Geo-Flow”), manufactures and distributes
a patented leaching system. For a time in the early 1990s,
plaintiff was the sole distributor of Geo-Flow systems in New
Hampshire. (Presby Aff. ¶ 1 ; Compl., Ex. 1.) While acting in
that capacity, plaintiff’s sole owner and president, David Presby
(“Presby”), prepared a publication titled “Geo-Flow Leaching
System™ Design & Installation Handbook for the State of New
Hampshire” (“the 1992 handbook”). That handbook was first
published on April 1 0 , 1992, and was most recently revised on
December 2 , 1994. (Compl., Ex. 1.)
Geo-Flow terminated its relationship with plaintiff in
September 1995, on grounds that plaintiff had breached its
distributorship contract by marketing its own competing product.
(Clavet Aff. ¶¶ 1 0 , 11.) In addition to terminating the
distributorship agreement, defendants Tom Caouette and Geo-Flow
(collectively “Geo-Flow”) sued Presby and Presby Environmental,
Inc. (collectively “Presby”) in this court. (Clavet Aff. ¶ 12.)
Geo-Flow filed suit in 1996. Although Geo-Flow did not prevail
3 on all of its legal theories, the jury returned a verdict in its
favor and against Presby in the amount of $450,000.
On February 7 , 1996, approximately five months after Geo-
Flow terminated its relationship with Presby, Presby applied for
a copyright on the 1992 handbook (Compl. Ex. 2 ) . A copyright was
duly granted, effective as of April 1 1 , 1996. (Id.) In 2000,
Geo-Flow published its own handbook (“the 2000 handbook”) titled
“A Leaching System for the Twenty-First Century, Design &
Installation Handbook with specifications for New Hampshire.”
(Compl. Ex. 4.) In this suit, plaintiff asserts that the 2000
handbook infringes its 1992 handbook copyright.
Discussion
Defendants move for summary judgment on grounds that: (1)
the two handbooks at issue are not substantially similar, which
forecloses a finding that the 2000 handbook was produced by
unlawful copying of plaintiff’s 1992 handbook; and (2) the 1992
handbook is not subject to copyright protection because it is not
an original work of authorship. Defendant further argues that
plaintiff is barred, by the doctrine of judicial estoppel, from
4 claiming that the 1992 handbook is an original work of authorship
because Presby maintained a contrary position during the 1996
suit brought against him by Geo-Flow. Plaintiff counters that
summary judgment is precluded because of: (1) genuine issues of
material fact concerning the originality of the 1992 handbook, in
light of the inapplicability of the doctrine of judicial
estoppel; and (2) defendants’ failure to provide factual analysis
to support their claim that the two handbooks are not
substantially similar.
Because the two handbooks are not substantially similar,
that i s , not similar to the degree necessary to support a claim
of copyright infringement, defendants’ motion for summary
judgment is granted. Given that resolution, the issues of
originality and judicial estoppel are not reached.
According to the Copyright Act, “the owner of copyright
under this title has the exclusive rights to do and to authorize
any of the following: (1) to reproduce the copyrighted work in
copies . . .” 17 U.S.C. § 106. Furthermore, “[a]nyone who
violates any of the exclusive rights of the copyright owner as
5 provided by sections 106 through 118 . . . is an infringer of the
copyright . . . of the author.” 17 U.S.C. § 501(a).
“To prevail on a claim of copyright infringement, the
plaintiff must show both ownership of a valid copyright and
illicit copying.” Yankee Candle C o . v . Bridgewater Candle Co.,
259 F.3d 2 5 , 33 (1st Cir. 2001) (citing Feist Pubs., Inc. v .
Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)). Here, the court
assumes, without deciding, that plaintiff owns a valid copyright
in the 1992 handbook. Thus, the dispositive issue becomes one of
“illicit copying.”
In determining whether illicit copying has occurred, the
court conducts a two-part test. Yankee Candle, 259 F.3d at 3 3 .
First, a plaintiff must prove that the defendant copied the plaintiff’s copyrighted work, either directly or through indirect evidence. Segrets, Inc. v . Gillman Knitwear Co., 207 F.3d 5 6 , 60 (1st Cir. 2000). Second, “the plaintiff must prove that the copying of the copyrighted material was so extensive that it rendered the infringing and copyrighted works ‘substantially similar.’” Id.; see also Skinder-Strauss Assocs. v . Mass. Continuing Legal Educ., Inc., 914 F.Supp. 665, 672 (D. Mass. 1995) (“Even evidence of actual copying may be insufficient, however, if this copying was not substantial.”).
6 Id. (footnote omitted). As with the question of validity, the
court assumes, without deciding, that defendant copied from the
1992 handbook when preparing the 2000 handbook, which leaves the
question of substantial similarity.
Whether there is substantial similarity between copyrightable expressions is determined by the “ordinary observer” test. Concrete Mach. C o . v . Classic Lawn Ornaments [Inc.], 843 F.2d 600, 607 (1st Cir. 1988). “The test is 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 protected [sic] expression by taking material of substance and value.” Id. (quoting Educ. Testing Servs. v . Katzman, 793 F.2d 533, 541 (3d Cir. 1986)) . . . . Any comparison between . . . two works must be informed by a key theoretical foundation of copyright law: that “[i]deas cannot be copyrighted,” id. at 606 (citing Harper & Row, Pubs., Inc. v . Nation Enters., 471 U.S. 539, 547 (1985)), and therefore that “[a]n artist ‘can claim to own only an original manner of expressing ideas,’ not the ideas themselves,” id. (quoting Cooling Sys. & Flexibles [Inc.] v . Stuart Radiator [Inc.], 777 F.2d 485, 491 (9th Cir. 1985)). Because of this dichotomy between “idea” and “expression,” only the “protected expression” is relevant to an evaluation of substantial similarity. Leigh v . Warner Bros., Inc., 212 F.3d 1210, 1214 (11th Cir. 2000).
Id. at 33-34 (parallel citations omitted).
In Yankee Candle, the contested subject matter consisted of
two sets of labels for candle fragrances published by rival
7 candle makers. Id. at 3 2 . Both sets were superficially similar,
in that the labels in each set were rectangular, had gold
borders, and displayed “full-bleed” photographs of the source of
the fragrances, i.e., various fruits, flowers, or foods. Id. To
determine whether the competing labels were substantially
similar, the district court conducted a “dissection” analysis –
endorsed by the court of appeals – in which it first pared away
the unprotected elements of the designs, including the
“rectangular, gold-bordered name plate, [the] full-bleed photos,
and [the use of] similarly sized labels,” id. at 3 4 , and then
compared the remaining copyrightable elements, id. at 3 5 . In
making its comparisons, the court relied upon the merger
doctrine, under which a “plaintiff has the heavy burden of
showing ‘near identity’ between the works at issue,” id. at 36
(citations omitted), when those works express ideas that may only
be expressed in a limited number of ways,” id. at 35-36. The
handbooks at issue here are amenable to that same analytical
approach.
According to plaintiff, defendants have “copied [both] the
essential organization and expression contained in the Presby
8 [1992] Handbook,” (Pl.’s Mem. of Law in Supp. of O b j . to Mot.
Summ. J. at 1 4 ) , as well as “specific details and expression,”
(id.) from the 1992 handbook. Plaintiff’s claim that defendants
have infringed its copyright on the essential organization of the
1992 handbook will be considered first, and then plaintiff’s more
specific claims of infringement.
I. Essential Organization
With respect to the essential organization of the 1992
handbook, plaintiff argues that:
Defendants have copied and utilized the basic form conceived by Mr. Presby and utilized in the Presby Handbooks, a form that is unique and distinct, and which organizes and expresses the information in an easily comprehensible manner. This form consists in part of the presentation of technical information in two columned, numbered, text, followed by numerous drawings. The defendants have adopted and utilized this same format in their handbook, and have reproduced many of the same drawings, with inconsequential alterations.
(Id. at 14-15.)
9 As a preliminary matter, it is doubtful that the graphic
format described by plaintiff is protectable by copyright. In
Yankee Candle, the court of appeals reasoned that:
the use of a border element [on a label] is an essentially functional design choice not protected by copyright. See 17 U.S.C. § 101 (providing copyright protection for “works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects”); CMM Cable Rep, Inc. v . Ocean Coast Props., Inc., 97 F.3d 1504, 1519-20 (1st Cir. 1996) (copyright law denies protection to forms of expression directed solely at functional considerations). A border is a common method of separating a photograph from a background; the use of gold as the border color is a common method of signifying opulence and quality. See Pubs. Int’l, Ltd. v . Landoll, Inc., 164 F.3d 337, 341 (7th Cir. 1998). Likewise, copyright does not provide protection for the particular style of photography chosen by Yankee (full-bleed). To do so would impermissibly narrow the possibilities available to other label designers. See Designer’s View, Inc. v . Publix Super Markets, Inc., 764 F.Supp. 1473, 1479 (S.D. Fla. 1991) (medium of artwork not protected by copyright).
259 F.3d at 3 5 . Plaintiff’s own characterization of the graphic
format it seeks to protect (i.e., “a form that is unique and
distinct, and which organizes and expresses the information in an
easily comprehensible manner” (emphasis added)), brings this case
squarely within the ambit of Yankee Candle. Plaintiff cannot
claim an exclusive right to express technical information in a
10 format consisting of numbered paragraphs of text, laid out in two
columns, followed by pictures. To allow plaintiff to protect a
graphic format described so generically “would impermissibly
narrow the possibilities available to other [handbook]
designers,” id. (citation omitted), by depriving them of the
right to use common functional features.
Furthermore, even if the graphic format of the 1992 handbook
were copyrightable, the 2000 handbook does not employ the same
graphic format of the 1992 handbook. The cover of the 1992
handbook features a drawing, while the cover of the 2000 handbook
features a photograph. The 1992 handbook consists of eighteen
numbered pages, while the 2000 handbook consists of thirteen
pages without numbers. The 1992 handbook has a table of
contents, while the 2000 handbook has none. The 1992 handbook
has eight pages of two-column text, while the 2000 handbook has
only two. The 1992 handbook has a section titled “Terms and
Definitions,” while the 2000 handbook has none. The 2000
handbook has a full page section, with single-column type and a
photograph, titled “GEO-flow’s Components,” while the 1992
handbook contains no such section. The 2000 handbook has an
11 entire page of single-column type devoted to “GEO-flow’s
Advantages,” while the 1992 handbook presents roughly analogous
information in a single paragraph of dual-column type titled
“Advantages of the Geo-Flow System.” The principal text of the
1992 handbook (encompassing eight pages) is presented in nine
numbered sections, with titles, each containing paragraphs that
are also numbered (1.1, 1.2, 1.3, and so o n ) . The principal text
of the 2000 handbook (encompassing two pages) is presented in
thirteen numbered paragraphs, without titles or additional
numbering. Finally, the 1992 handbook concludes with a page
titled “Distribution Boxes Don’t Work . . . (unless you use
EQUALIZERs),” while the 2000 handbook has no such page. Given
the numerous readily apparent differences between the graphic
formats of the two handbooks, the court finds, as a matter of
law, that the two graphic formats are not substantially similar
under the “ordinary observer” test. See Yankee Candle, 259 F.3d
at 33 (citing Concrete Mach., 843 F.3d at 6 0 7 ) . And, because the
two handbooks are not substantially similar in that respect, the
graphic format of the 2000 handbook does not infringe plaintiff’s
copyright on the 1992 handbook.
12 II. Specific Details
Having found that the graphic format of the 2000 handbook is
not substantially similar to that used in the 1992 handbook, the
court turns to the specific infringing details in the 2000
handbook that plaintiff identifies. Those details fall into
three main categories: charts, drawings, and text. But before
discussing those categories of expression, it is useful to focus
briefly on the merger doctrine, and the allied “scenes a faire”
doctrine, which provide the legal principles governing
plaintiff’s claims.
In Concrete Machinery, we [the First Circuit] explained the rationale behind the merger doctrine:
Some ideas admit of only a limited number of expressions. When there is essentially only one way to express an idea, the idea and its expression are inseparable and copyright is no bar to copying that expression. [Even] [w]hen the idea and its expression are not completely inseparable, there may still be only a limited number of ways of expressing the idea.
843 F.2d at 606 (internal citations omitted). In such cases, the plaintiff has the heavy burden of showing “near identity” between the works at issue. Id. at 606-07 (citing Sid & Marty Krofft Television [Prods., Inc.] v . McDonald’s Corp., 562 F.2d 1157, 1167 (9th Cir. 1977), and Flag Fables Inc. v . Jean Ann’s Country Flags & Crafts, Inc., 730 F.Supp. 1165, 1171 (D. Mass. 1990)). This heightened showing “is necessary because, as idea and expression merge, fewer and fewer aspects
13 of a work embody a unique and creative expression of the idea; a copyright holder must then prove substantial similarity to those few aspects of the work that are expression not required by the idea.” Id. at 607 (citing Universal Athletic Sales C o . v . Salkeld, 511 F.2d 904, 908 (3d Cir. 1975)).
Yankee Candle, 259 F.3d at 35-36. As for the reason behind the
doctrine:
When the uncopyrightable subject matter is very narrow, so that “the topic necessarily requires[]” if not only one form of expression, at best only a limited number, 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. In such circumstances it does not seem accurate to say that any particular form of expression comes from the subject matter. However, it is necessary to say that the subject matter would be appropriated by permitting the copyrighting of its expression. We cannot recognize copyright as a game of chess in which the public can be checkmated.
Morrissey v . Proctor & Gamble C o , 379 F.2d 675, 678-79 (1st Cir.
1967) (citations omitted) (affirming summary judgment for
defendant who published a set of contest rules that were very
similar to rules published by plaintiff, holding that “plaintiff
cannot complain even if his particular expression was
deliberately adopted”).
14 While the court of appeals in Yankee Candle went on to
explain that “the merger doctrine is most applicable where the
idea and the expression are of items found in nature, or are
found commonly in everyday life,” id. at 3 6 , that doctrine is
also applicable to verbal expressions. For example, “where the
rules of a promotional contest of the sweepstakes type were so
straight-forward and simple, copyright protection did not extend
to those rules.” C M M Cable Rep, Inc., 97 F.3d at 1522 (citing
Morrissey, 379 F.2d at 678 (questioned in 3 MELVILLE B . NIMMER &
DAVID NIMMER, NIMMER ON COPYRIGHT (1995) (hereinafter “NIMMER”) §
13.03[B], at 13-81); American Dental Assoc. v . Delta Dental Plans
Assoc., N o . 92 C 5909, 1996 W L 224494, at *12 (N.D. Ill. 1996)
(“[W]hile there are no hard and fast rules about when merger
occurs, the consensus is that the ‘shorter a phrase i s , the less
likely it is to have accep[table] substitutes, thus barring
protection under the [m]erger [d]octrine.’”) (quoting 1 PAUL
GOLDSTEIN, COPYRIGHT § 2.7.3, at 2:100 (2d ed. 1996)).
Closely allied with the merger doctrine is the “scenes a
faire” doctrine. Both doctrines are concerned “with preventing a
monopoly on commonplace ideas, [but] they differ: merger applies
15 when the idea and expression are inseparable while scenes a faire
applies when the similarity of expression results from stock
scenes or elements that necessarily flow from a common idea,” C M M
Cable Rep, 97 F.3d at 1522 n.25 (citing 3 NIMMER § 13.03[B][3], at
13-76; § 13.03[B][4], at 13-82). In C M M Cable Rep, the court
conclude[d] that C M M cannot succeed on its infringement claim with respect to the text of the supporting materials [newspaper ads, faxes, television advertisements, and on-air scripts] . . . [because] under the “scenes a faire” doctrine . . . the complained-of similarities consist of unoriginal elements flowing from the undisputed standard and inherent characteristics of direct mail radio promotions and, as such, “flow from the logic and necessities of [these radio] game[s].” Barris/Fraser [Enters. v . Goodson-Todman Enters.] 5 USPQ.2d [1887,] 1891 [1988 W L 3013 ( S . D . N . Y . 1988)] (stating that to prevail in infringement claim of television show copied material must be more than stock element).
97 F.3d at 1522.
With the doctrines of merger and scenes a faire in mind, the
court now focuses on the specific details of the 2000 handbook
that plaintiff claims to be infringing. At the outset, it should
be noted that as manuals for the design and installation of
septic systems, which communicate various inflexible product
specifications and legal requirements, the two handbooks at issue
16 here have much in common with the promotional materials at issue
in both CMM Cable Rep, 97 F.3d at 1522 (“[defendant] WPOR’s
supporting materials do not constitute actionable copying to the
extent that the similarities . . . involve standard “how to”
features of direct mail radio promotion”), and Morrissey 379 F.2d
at 678-79. Like the courts that decided those cases, this court
must take care not to allow the use of copyright to appropriate
ideas. See id. at 679. Plaintiff identifies three categories of
expression allegedly infringed by defendants: charts, drawings,
and text.
Charts. Plaintiff asserts that two charts in the 2000
handbook infringe its copyright on two charts in the 1992
handbook. Specifically, he claims that: (1) defendants’ chart
titled “Spacing of GEO-flow pipes / Feet Center-to-Center between
pipes” infringes its copyright on a chart in the 1992 handbook
titled “GEO-FLOW PIPE SPACING CHART / Minimum Center to Center
Spacing”; and (2) defendant’s chart titled “Slope Design Chart /
Drop Between Lines of GEO-flow for Particular Pipe Spacings and
Slopes” infringes its copyright on a chart in the 1992 handbook
titled “Slope Design Chart / Percentage of Slope.” Both charts
17 are standard box charts, displaying values for one variable
across the top (the x-axis) and values for another variable down
the left-hand side (the y-axis), and both charts (predictably)
convey identical data. At the same time, however, the charts in
the 2000 handbook are oriented differently on the pages on which
they appear, have somewhat different headings, and contain
certain slightly different design elements. In other words, the
charts in the 2000 handbook are not mere photocopies of the
charts in the 1992 handbook. Because the charts consist
predominantly of uncopyrightable material, i.e., the data they
contain and the standard manner of presentation they employ, and
because there are, in fact, discernable differences between the
two sets of charts with respect to the minute amount of
copyrightable expression in them, the charts in the 2000 handbook
do not infringe plaintiff’s copyright on the 1992 charts. To
rule otherwise would essentially bar defendant from using a
common graphic representation of the information in those two
charts, a result repugnant to the Copyright Act. See Morrissey,
379 F.2d at 678-79.
18 Drawings. Plaintiff asserts that seven drawings in the 2000
handbook infringe its copyright on a like number of drawings in
the 1992 handbook. One of the disputed drawings (“Typical Parts
for GEO-flow Leaching System” in the 2000 handbook, “PARTS OF
GEO-FLOW SEPTIC LEACHING SYSTEM” in the 1992 handbook) depicts
the parts used in constructing a Geo-Flow leaching system, while
the remainder of the drawings are plan views and cross-section
elevations related to various types of Geo-Flow systems
constructed in a variety of topographic settings. Because both
sets of drawings depict the same product used to build septic
systems conforming to the same physical principles and legal
standards, both sets of drawings predictably contain much the
same information. In other words, because the similarities
between the two sets of drawings “flow[] from the logic and
necessities,” CMM Cable Rep, 97 F.3d at 1522, of building a
functional septic system using Geo-Flow products, consistently
with applicable law, the scenes a faire doctrine plainly applies
and renders non-actionable plaintiff’s copying of defendant’s
depictions of those many aspects of designing and installing a
Geo-Flow system that cannot be depicted effectively in any other
way.
19 As for the remaining aspects of the drawings, those that do
not flow from the logic and necessities of designing a Geo-Flow
septic system, it is apparent that the drawings in the 2000
brochure were not simply traced, photocopied, or otherwise
mechanically reproduced from the 1992 handbook. See Yankee
Candle, 259 F.3d at 36 (“If Bridgewater had scanned Yankee’s
labels into a computer and reproduced them exactly, it would have
certainly infringed Yankee’s copyrights on those labels.”) The
drawings in the two handbooks are ordered and organized
differently (ten drawings on seven pages in the 1992 handbook as
opposed to ten drawings on eight pages in the 2000 handbook), and
the drawings in each handbook have their own distinguishing
artistic touches. For example, the principal pipes in the 2000
handbook are cross-hatched (as they were in a one-page flier
produced by defendants prior to the production of the 1992
handbook (see Presby Aff., Ex. 1)) while in the 1992 handbook,
the pipes are not cross-hatched. Given the constraints imposed
by the subject matter depicted, the purposes for which the two
handbooks were prepared, the degree of copying allowed by the
scenes a faire doctrine, and the identifiable differences between
the two sets of drawings identified above, plaintiff has not
20 carried “the heavy burden of showing ‘near identity’ between the
works at issue.” Yankee Candle, 259 F.3d at 36 (quoting Concrete
Mach., 843 F.2d at 607-07).
Text. Plaintiff fares no better on its claims of infringing
text. Each of plaintiff’s three assertions of allegedly
infringing text will be examined in turn. See Yankee Candle, 259
F.3d at 37 n.7 (approving “an extensive comparison of [the]
corresponding labels . . . ” ) .
Plaintiff claims that Point 1 and the note to Point 6 in the
2000 handbook are substantially similar to ¶ 1.18 in the 1992
handbook.
¶ 1.18 in the 1992 handbook provides:
“Use a clean, medium to coarse sand, with a particle size of .175 mm to 2 mm, in systems where the Geo-Flow slope design is less than 1 5 % . Systems with a Geo-Flow slope design greater than 15% must use a clean, loamy, fine sand with a particle size of .05 to 1.25 mm to slow the percolation rate and to control the downward flow of effluent to the low point of the system (Fig. 2).”
Point 1 and the note to Point 6 in the 2000 handbook provide:
21 “GEO-flow pipe is a leaching system approved for use in New Hampshire as per these design specifications. See Figure 1 for a schematic of the GEO-flow system. All installations of GEO-flow pipe require a minimum of 6 inches of sand around the circumference of the pipe. Unless otherwise specified, plans should specify the use of clean, medium to coarse sand with a particle size of .175 mm to 2 mm.
Note: A clean, loamy, sand with a particle size of .05 mm to 1.25 mm with a slower percolation rate must be used on sloping sand bed designs greater than 15% in order to control effluent flow to the downhill side.”
The only discernable similarity between the two passages is that
each recommends using sand with the same particle size for
leaching beds with the same slopes, for the same purposes. As
for the manner in which the idea is expressed, defendants split
the idea between two paragraphs, while plaintiff expresses it in
one. Defendants use an entirely different type-face than
plaintiff for the name of the product, and defendants include two
additional ideas in the accused paragraphs that are absent from
plaintiff’s paragraph, namely requirements (ideas) related to
state approval and the amount of sand necessary around the
circumference of the pipe. While both handbooks use the phrase
“clean, medium to coarse sand, with a particle size of .175 mm to
2 mm,” defendants’ use of that phrase is not actionable because
22 “[i]t is axiomatic that copyright law denies protection to
‘fragmentary words and phrases’ and to ‘forms of expression
dictated [sic] solely at functional considerations’ on the
grounds that these materials do not exhibit the minimum level of
creativity necessary to warrant copyright protection.” CMM Cable
Rep, 97 F.3d at 1519 (citations omitted).
Plaintiff also claims that Point 4 in the 2000 handbook is
substantially similar to ¶¶ 1.3 and 1.5 in the 1992 handbook.
¶¶ 1.3 and 1.5 in the 1992 handbook provide:
“Systems may be designed in irregular shapes to accommodate unusual terrain. Beds, for instance, can be trapezoidal, curved or L-shaped rather than rectangular. Longer single lines are preferable to multiple shorter lengths, because the longer lines provide better settling of suspended solids that may have passed through the septic tank, allowing them to be collected inside the Geo-Flow pipe.
Ideally, the minimum individual line length of Geo-Flow pipe should be 30 feet, with a maximum of 100 feet. In some cases it may be necessary to design in shorter or longer lengths to work around obstacles or problems.”
Point 4 in the 2000 handbook provides:
23 “The ideal minimum individual length of GEO-flow piping should be 30 feet. Length should not exceed 100 feet.
NOTE: Longer lines provide better settling of suspended solids which may have escaped from the septic tank.”
As with the previous comparison, the allegedly infringing text is
substantially different, as a verbal expression, from the text
plaintiff claims defendant copied. The strongest similarity
between the two texts is that they express the same idea: that
Geo-Flow pipes should be at least 30 feet long, should not be
longer than 100 feet, and work better at greater lengths because
longer length allows for better settling of suspended solids.
But these common ideas are presented differently; plaintiff’s
handbook uses many more words, splits the idea between two
different paragraphs, and explores an area left entirely
unaddressed by defendant, namely alternative bed shapes that may
be created using the product. And, as with the previous
comparison, the single phrase appearing in both texts, “longer
lines provide better settling of suspended solids,” is simply too
cryptic, idea-laden, and lacking in creativity to support a claim
of copyright infringement. See id.
24 Finally, plaintiff claims that Point 6 in the 2000 handbook
is substantially similar to ¶ 1.18 in the 1992 handbook.
However, based upon an examination of the 1992 handbook, and the
fact that plaintiff claims its copyright on ¶ 1.18 was infringed
by other sections of the 2000 handbook, it appears that plaintiff
meant to claim that Point 6 in the 2000 handbook is substantially
similar to ¶ 2.1 in the 1992 handbook rather than ¶ 1.18.
¶ 2.1 in the 1992 handbook provides:
“Raised Bed Design and Raised Sloping Bed Designs: Clean, medium to coarse sand, with a particle size of .175 mm to 2 mm, should extend a minimum of 1.0 feet beyond the Geo-Flow pipe on all sides for raised beds and raised sloping bed designs, and 3.0 to 4.0 feet on the lower side of a raised sloping bed design. Fill on all sides of a raised bed design must extend a minimum of 5.0 feet beyond the Geo-Flow pipe before sloping a maximum of 3 to 1 (2:1 with a waiver). Fill on the lower side of a raised sloping bed design must extend a minimum of 6.0 feet beyond the Geo-Flow pipe before sloping a maximum 3 to 1 (2:1 with a waiver) (Figs. 2, 4, 5 and 7).
Note: Sloping bed designs greater than 15% must use a clean, loamy, find sand, with a particle size of .05 mm to 1.25 mm, with a slower percolation rate to control effluent flow to the downhill side (Figs. 2, 4, 5, and 7).”
Point 6 in the 2000 handbook provides:
25 “In New Hampshire, for raised sand beds and raised sloping sand bed designs, clean medium-to-coarse sand with a particle size of .175 mm to 2 mm, should extend a minimum of 12 inches beyond the GEO-flow pipe on all sides, and 3.0 to 4.0 feet on the lower side of a raised sloping sand bed design. See Figure 2 for a flat raised bed design and Figure 3 for a sloped raised bed design. The following charts can be used to determine the proper spacing (“A” in Figures 2 and 3 ) and drop (“B” in Figure 3 ) between lines. First, use the “Spacing of GEO-flow pipes” chart to determine the proper spacing “A” between Geo-flow lines based on the percent slope and the soil percolation. Next, for a sloped design, use the “Slope Design Chart” to determine the proper drop between GEO-flow lines based on the distance between the lines “A” and the percent slope. Fill on all sides of a raised sand bed design must extend a minimum of 5.0 feet beyond the GEO-flow pipe before sloping a maximum of 3:1 (2:1) with a variance). Fill on the lower side of a raised sloping sand bed design must extend a minimum of 6.0 feet beyond the GEO-flow pipe before sloping to a maximum of 3:1 (2:1 with a variance). Note: A clean, loamy sand with a particle size of .05 mm to 1.25 mm with a slower percolation rate must be used on sloping sand bed designs greater than 15% in order to control effluent flow to the downhill side.”
While the correspondence between the two passages quoted above is
greater than the correspondence in the other two comparisons
identified by plaintiff, it is still permissible. On the one
hand, the passages differ to the extent that the 2000 handbook
uses more paragraphs to separate the basic ideas being expressed
and, in addition, provides more specific reference to the figures
26 that follow the text. But more importantly, these passages
contain very little protectable expression because the ideas
expressed are so strongly functional. See id.
In summary, the undisputed factual record, viewed in the
light most favorable to plaintiff, contains no evidence of
impermissible copying. Plainly (and predictably), there are
similarities between the two handbooks, but those similarities
result from the fact that both handbooks are intended as
functionally based expressions of the same basic ideas about
designing and installing septic systems using Geo-Flow products
that also comply with legal requirements. Because the two
publications are so strongly functional, they contain little
protectable creative expression. Consequently, defendants enjoy
considerable latitude with respect to copying. If plaintiff’s
interpretation of copyright law prevailed, defendants, and all
others, would be effectively prevented from producing a useful
handbook for the design and installation of Geo-Flow leaching
systems that meet legal requirements. Because copyright law
protects expression rather than ideas, see Yankee Candle, 259
F.3d at 3 3 , and disfavors the appropriation of subject matter,
27 see Morrissey, 379 F.2d at 679, defendants are entitled to
judgment as a matter of law. The 2000 handbook contains no
impermissible copying, and does not infringe plaintiff’s
Conclusion
For the reasons given, defendants’ motion for summary
judgment (document n o . 21) is granted. The Clerk of Court shall
enter judgment in accordance with this order and close the case.
SO ORDERED.
Steven J. McAuliffe United States District Judge
November 1 9 , 2001
cc: Douglas L. Ingersoll, Esq. Daniel L. Mitchell, Esq.