United States District Court, D. Colorado
ORDER GRANTING DEFENDANT MOLLY MANNERS’ EARLY MOTION FOR PARTIAL SUMMARY JUDGMENT
WILLIAM J. MARTÍNEZ UNITED STATES DISTRICT JUDGE.
Plaintiff Civility Experts Worldwide (“Civility Experts”) sues Defendant Molly Manners, LLC (“Molly Manners”) for copyright infringement and related causes of action. (See ECF No. 47.) Currently before the Court is Molly Manners’ Early Motion for Partial Summary Judgment (“Motion”) attacking only Civility Experts’ copyright infringement claim. (ECF No. 85.) For the reasons explained below, Molly Manners’ Motion is granted, but, contrary to Molly Manners’ view, this outcome does not automatically dispose of Civility Experts’ claim for breach of the contract.
I. LEGAL STANDARD
Summary judgment is warranted under Federal Rule of Civil Procedure 56 “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A fact is “material” if, under the relevant substantive law, it is essential to proper disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). An issue is “genuine” if the evidence is such that it might lead a reasonable trier of fact to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).
In analyzing a motion for summary judgment, a court must view the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). In addition, the Court must resolve factual ambiguities against the moving party, thus favoring the right to a trial. See Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).
The following facts are undisputed unless otherwise noted.
Civility Experts “is in the business of providing civility training solutions.” (ECF No. 85 at 2, ¶ 2.) Civility Experts offers, among other things, lesson manuals for teaching manners to children. (Id.) Three of those lesson manuals are at issue here: Macaroni and Please (designed for ages 3-7), Confidence is Cool (designed for ages 8-12), and Proud to Be Polite (also designed for ages 8-12) (collectively, “Civility Experts’ Lessons”). (See ECF No. 86-6 at 1; ECF No. 86-7 at 1; ECF No. 86-8 at 1.) Civility Experts has registered copyrights for each of these Lessons. (ECF No. 115 at 5, ¶¶ 1-3.)
Molly Manners was formed in 2010, and is also in the business of teaching manners to children. (ECF No. 85 at 2, ¶ 4.) Molly Manners purchased Civility Experts’ Lessons sometime in 2011. (Id. at 3, ¶¶ 6-9.) Molly Manners claims it also purchased permission to distribute Civility Experts’ Lessons to Molly Manners’ licensees. (Id. ¶¶ 6-7.) Civility Experts denies this, but it appears undisputed that Molly Manners incorporated at least portions of Civility Experts Lessons into three of Molly Manners’ own lesson manuals. (Compare Id. at 2, ¶ 4 with ECF No. 115 at 3, ¶ 4.)
“In the spring of 2013, a dispute arose wherein [Civility Experts] accused Molly Manners of copyright infringement.” (ECF No. 85 at 4, ¶ 11.) Molly Manners denied the accusation. (Id.) In April 2013, Civility Experts and Molly Manners entered into a Settlement Agreement (without litigation, apparently). (Id. ¶ 12.) Through the Settlement Agreement, Molly Manners agreed to remove all references to [Civility Experts’] copyright[ed]
materials from the main/home website including . . . verbatim lesson names and will stop including such content, in whole or in part, in Molly Manners programs, except for those certain existing licensees of Molly Manners previously granted usage rights who may continue to use such copyright[ed] content . . . . [Civility Experts’] copyright[ed] content will not be extracted, distributed, or duplicated, in print, electronically, or verbally, in whole or in part, for any purpose by Molly Manners.
(ECF No. 86-10 ¶ 1.)
Molly Manners says that it then “modified its teacher guides and materials” to remove any of Civility Experts’ copyrighted content. (ECF No. 85 at 4, ¶ 14.) Civility Experts denies this and alleges that three Molly Manners lesson manuals continue to infringe Civility Experts’ copyrights, and are also a violation of the Settlement Agreement. (See ECF No. 47 ¶¶ 54, 90-107; ECF No. 86-36 at 8-23; ECF No. 115 at 6-11, ¶¶ 1-13.) The three relevant Molly Manners lesson manuals are: Nice is Right (aimed at ages 3-6), Kool to Be Kind (aimed at ages 7-11), and The Young Sophisticate (aimed at ages 12-17) (collectively, “Molly Manners’ Lessons”). (See ECF No. 86-11 at 1; ECF No. 86-15 at 1; ECF No. 86-24 at 1.)
In this lawsuit, Civility Experts accuses Molly Manners of breaching the settlement agreement (Count 1), and accuses Molly Manners and some of its licensees of tortious interference with prospective economic advantage (Count 2), copyright infringement (Count 3), unfair competition (Count 4), and false advertising (Count 5).(ECF No. 47 ¶¶ 90-131.)
III. CONSIDERATIONS REGARDING EARLY SUMMARY JUDGMENT
The undersigned permits an early motion for summary judgment if filed “within 30 days after entry of the initial scheduling order, ” and if the motion “presents a substantial and well-supported argument for significantly reducing the claims or issues in the case.” WJM Revised Practice Standard III.E.2. Civility Experts interprets “within 30 days after entry of the initial scheduling order” to mean that a party may file an early summary judgment motion no earlier than the date on which the scheduling order is entered. (ECF No. 115 at 12-13.) Because Molly Manners filed the present Motion on August 14, 2015, and the scheduling order did not enter until September 29, 2015, Civility Experts argues that Molly Manners’ Motion should be denied as procedurally improper. (Id.)
Civility Experts’ interpretation of Practice Standard III.E.2 is incorrect. “[W]ithin 30 days after entry of the initial scheduling order” only places limits on how late a party may file an early summary judgment motion, not how early. See MPVF Lexington Partners, LLC v. W/P/V/C, LLC, ___F.Supp. 3d ___, ___n.1, 2015 WL 5444297, at *1 n.1 (D. Colo. Sept. 16, 2015). The Court accordingly rejects Civility Experts’ argument that Molly Manners did not file its Motion at the proper time.
Nonetheless, the Motion must “present a substantial and well-supported argument for significantly reducing the claims or issues in the case.” WJM Revised Practice Standard III.E.2. In this case, it does. Civility Experts’ copyright infringement claim (Count 3) will likely be a major portion of this case. Furthermore, Civility Experts specifically links its unfair competition and false advertising claims (Counts 4 and 5) to its copyright infringement allegations. (See ECF No. 47 ¶¶ 118, 121-22, 127, 129-30.) Early summary judgment on the question of copyright infringement is therefore appropriate.
IV. COPYRIGHT INFRINGEMENT STANDARD
The basic elements of a copyright claim are twofold: “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991).
The second element is itself broken down into multiple inquiries. It begins with an analysis of “copying, ” meaning sufficient proof that the defendant actually “used the plaintiff’s material as a model, template, or even inspiration, ” as opposed to coincidentally creating the same or a similar work. 4-13 Nimmer on Copyright § 13.01[B]; see also Alan Latman, “Probative Similarity” as Proof of Copying: Toward Dispelling Some Myths in Copyright Infringement, 90 Colum. L. Rev. 1187, 1189 (1990) (“‘copying’ . . . is the obverse of independent creation”).
A plaintiff may attempt to prove copying through “direct evidence.” Gates Rubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d 823, 832 (10th Cir. 1993). Direct evidence usually requires “a witness to the physical act of copying.” 4-13 Nimmer on Copyright § 13.01[B] (footnote omitted); see also American Bar Association, Model Jury Instructions: Copyright, Trademark, and Trade Dress Litigation § 1.5.2 (2008) (“An example of direct evidence would be an admission by defendant that part or all of the work was copied. Direct evidence may also be the credible testimony of a witness who saw the work being copied.”). But “[d]irect proof of copying is rare, ” so “plaintiffs will typically rely on the indirect method of proof.” Gates Rubber, 9 F.3d at 833.
The indirect method requires (1) evidence that the defendant had access to the copyrighted work, and (2) “probative similarities between the copyrighted material and the allegedly copied material.” Id. at 832. “Probative similarity” is also sometimes phrased as “substantial similarity.” See Country Kids ’N City Slicks, Inc. v. Sheen, 77 F.3d 1280, 1289 n.4 (10th Cir. 1996). These terms, however, are not properly interchangeable. Probative similarity is part of the inquiry into whether, as a factual matter, it is more likely than not that the defendant copied from the plaintiff’s work: “similarities that, in the normal course of events, would not be expected to arise independently in the two works are probative of defendant’s having copied as a factual matter from plaintiff’s work.” 4-13 Nimmer on Copyright § 13.01[B]. Substantial similarity, by contrast, “is a mixed question of fact and law, ” O’Neill v. Dell Pub. Co., 630 F.2d 685, 687 (1st Cir. 1980),  and accommodates the fact that “[n]ot all copying . . . is copyright infringement, ” Feist, 499 U.S. at 361. Substantial similarity thus addresses the ultimate question on liability: assuming the defendant copied at least some amount of the plaintiff’s work, did the defendant copy “protectable elements” of the plaintiff’s work, and do those “protectable elements comprise a substantial part of the plaintiff’s [work] when it is considered as a whole”? Gates Rubber, 9 F.3d at 833; see also Country Kids, 77 F.3d at 1284 (“A finding that [the defendant] copied some aspect of [the plaintiff’s work], however, would not end the court’s inquiry, as liability for copyright infringement will attach only where protected elements of a copyrighted work are copied. To impose such liability, the court must find substantial similarity between those aspects of [the plaintiff’s work] which are legally protectable and the [defendant’s work].” (citations omitted)).
What, then, are the protectable elements? To answer this question, the Tenth Circuit frequently employs the “abstraction-filtration-comparison” test, also sometimes known as the “successive filtration” test. Country Kids, 77 F.3d at 1284 & n.5. “At the abstraction step, [courts] separate the ideas (and basic utilitarian f unctions), which are not protectable, from the particular expression of the work.” Id. at 1284-85. This stems from two established propositions. First, “facts are not copyrightable.” Feist, 499 U.S. at 344. Second, “[i]n no case does copyright protection . . . extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” 17 U.S.C. § 102(b). Thus, “[t]he copyright is limited to those aspects of the work-termed ‘expression’-that display the stamp of the author’s originality.” Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 547 (1985).
Given these exclusions for facts, idea, concepts, and the like, demonstrating protectable expression in nonfiction literature, and particularly instructional literature, is comparatively more difficult than demonstrating protectable expression in fiction. Cf. Feist, 499 U.S. at 349 (“copyright in a factual compilation is thin”); Glass v. Sue, 2010 WL 4274581, at *3 (C.D. Cal. Oct. 22, 2010) (“In a factual work, such as a technical manual, there is typically a very narrow range of expression. Therefore, copyright protection is narrow . . . .”). Such expression may nonetheless include original phrasing of facts and ideas. Feist, 499 U.S. at 349-50. It may also include “an original selection or arrangement” of facts or ideas. Id. at 348; cf. Enter. Mgmt. Ltd., Inc. v. Warrick, 717 F.3d 1112, 1119 (10th Cir. 2013) (in a case regarding visual depiction of unprotectable concepts, courts “must focus on whether [the plaintiff] has selected, coordinated, and arranged the elements of her diagram in an original way” (internal quotation marks omitted)).
Following the abstraction analysis, a court must “filter out the nonprotectable components of the product from the original expression.” Country Kids, 77 F.3d at 1285. When nonfiction works are at issue, as here, such filtering often involves the doctrines of “merger” and “scenes a faire.”
“Under the merger doctrine, copyright protection is denied to expression that is inseparable from or merged with the ideas, processes, or discoveries underlying the expression.” Gates Rubber, 9 F.3d at 838. The merger doctrine is considered “a prophylactic device to ensure that courts do not unwittingly grant protection to an idea by granting exclusive rights to the only, or one of only a few, means of expressing that idea.” Id. (emphasis added).
The scenes a faire doctrine is a particular extension of the idea that matters in the public domain cannot be copyrighted. 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.” Id. “The scenes a faire doctrine also excludes from protection those elements of a [work] that have been dictated by external factors.” Id.; see also Walker v. Time Life Films, Inc., 784 F.2d 44, 50 (2d Cir. 1986) (“Neither does copyright protection extend to copyright or ‘stock’ themes commonly linked to a particular genre.”).
Once these nonprotectable aspects of the work have been filtered, a court must “compare the remaining protected elements to the allegedly copied work to determine if the two works are substantially similar.” Country Kids, 77 F.3d at 1285. In particular, “the court must find that the defendant copied protectable elements of the plaintiff’s [work] and that those protectable elements comprise a substantial part of the plaintiff’s [work] when it is considered as a whole.” Gates Rubber, 9 F.3d at 833.
A. Matters Truly in Dispute
Given the foregoing, the elements of a copyright claim under the circumstances of this case may be summarized as follows:
1. Ownership: Civility Experts owns a valid copyright in its Lessons.
2. Copying: Molly Manners-
a. directly copied Civility Experts’ Lessons; or
b. Molly Manners
i. had access to Civility Experts’ Lessons, and
ii. Molly Manners’ Lessons bear probative similarities to Civility Experts’ Lessons.
3. Substantial Similarity: After separating ideas from their expression, and filtering protectable from nonprotectable expression in Civility Experts’ Lessons, Molly Manners’ Lessons contain protectable elements of Civility Experts’ Lessons that comprise a substantial part of Civility Experts’ Lessons when considered as a whole.
For present purposes, Molly Manners does not dispute Element 1 (ownership) or Element 2(b)(i) (access). (See ECF No. 85 at 9; ECF No. 129 at 4, ¶¶ 1-4.) Molly Manners says that it is disputing Element 2(b)(ii) (probative similarity), but that is because Molly Manners, like many others, confuses the probative similarity inquiry with the ultimate substantial similarity inquiry. What Molly Manners really disputes is Element 3 (substantial similarity). (See ECF No. 85 at 9 (“the only element at issue is whether there are probative similarities (a/k/a ‘substantial similarity’) between the legally protectable elements of Plaintiff’s materials and Molly Manners’ materials”).)
Element 2 is unresolvable at this stage given that Molly Manners’ attempted admission of Element 2(b)(i) is not enough to satisfy all of Element 2(b), and Molly Manners does not admit Element 2(a) (direct copying). However, Elements 1, 2, and 3 are conjunctive, so failure as to any one of them would defeat Civility Experts’ copyright claim. Thus, the Court will disregard Elements 1 and 2 for present purposes and move directly to Element 3. Cf. Gates Rubber, 9 F.3d at 833 (“Although we suggest that it will often be helpful to make an initial determination of whether the defendant copied portions of the plaintiff’s [work] before determining whether the copying involved protectable elements under the copyright law, there may be cases where the issue of protectability can more efficiently be addressed first.”).
B. The Scope of Civility Experts’ Comparisons
Civility Experts points out numerous alleged similarities between its Lessons and Molly Manners’ Lessons. (See ECF No. 115 at 6-11; see also ECF No. 86-36 at 8-23.) These alleged similarities range from large-scale structure down to word choice in individual sentences. The Court will address Civility Experts’ alleged similarities in essentially that large-to-small order, to determine which similarities relate to protectable elements of Civility Experts’ Lessons.
Before reaching those alleged similarities, however, the Court must address the scope of Civility Experts’ copyright allegations. Specifically, the Court must address Civility Experts’ practice, evident at various times below, of drawing out alleged similarities by: (1) comparing a single Civility Experts Lesson to two or more Molly Manners Lessons, collectively; (2) comparing two or more Civility Experts Lessons, collectively, to a single Molly Manners Lesson; and (3) comparing two or more Civility Experts Lessons, collectively, to two or more Molly Manners’ Lessons, collectively.
As to the first practice (comparing the copyrighted work to multiple other works, collectively), the Tenth Circuit has endorsed the possibility of copyright infringement in this manner. See Jacobsen v. Deseret Book Co., 287 F.3d 936, 945 (10th Cir. 2002) (comparing plaintiff’s one-volume work to defendants’ five-volume work). This makes intuitive sense. An obvious ripoff of a copyrightable work could not avoid infringement simply by being broken up into a trilogy. Thus, Civility Experts’ practice of comparing one of its Lessons to a combination of Molly Manners Lessons faces no fundamental legal obstacle.
As to the second practice (comparing multiple copyrighted works, collectively, to a single work), Civility Experts offers no supporting authority, but some extra-circuit authority nonetheless exists. See Castle Rock Entm’t, Inc. v. Carol Pub. Grp., Inc., 150 F.3d 132, 138 (2d Cir. 1998) (citing cases). The allegedly infringing work in Castle Rock was a Seinfeld trivia book that had distilled fragments from 84 of the 86 individually copyrighted Seinfeld episodes that had aired before the book’s publication. Id. at 135-36. The Second Circuit acknowledged that the Copyright Act repeatedly speaks of infringing “the copyrighted work” (singular), see 17 U.S.C. § 106, but adhered to several other decisions treating multiple copyrighted works in the aggregate when comparing them to the defendant’s alleged infringing work. Castle Rock, 150 F.3d at 138. In particular, the court saw Seinfeld as “a single work” because it was “a discrete, continuous television series.” Id.
The Castle Rock theory is somewhat concerning. At a minimum, Castle Rock leaves unresolved the question of whether a defendant may invoke aggregation as well. Thus, if a defendant copied what might be considered a substantial portion of a single Seinfeld episode, could that defendant demand that his copying be compared to all Seinfeld episodes in the aggregate? If not, then the aggregation principle creates-with no obvious justification-a “heads I win, tails you lose” situation in favor of the copyright owner. See also 4-13 Nimmer on Copyright § 13.03[A] (discussing other potential concerns with the Castle Rock approach).
In all events, the Court need not decide whether the Castle Rock theory applies here because Civility Experts’ Lessons cannot be viewed as a discrete, continuous series in the same sense as a television series. Accordingly, to the extent Civility Experts is attempting to establish an actionable comparison by comparing one Molly Manners Lesson to multiple Civility Experts Lessons, the Court has disregarded it.
As to the third practice (comparing multiple works, collectively, to multiple works, collectively), Civility Experts cites no authority-and the Court could find none- endorsing this sort of “corpus vs. corpus” theory of copyright infringement. Absent such authority, or at least an intuitively workable principle (resolving, e.g., what counts as the “corpus”), the Court will not explore whether multiple Molly Manners Lessons, taken together, infringe multiple Civility Experts Lessons, taken together.
C. Abstraction & Filtration
The Court now turns to the abstraction and filtration process as applied to Civility Experts’ alleged similarities between its Lessons and Molly Manners’ Lessons. The Court has read both Civility Experts’ and Molly Manners’ respective Lessons cover-to-cover (specifically, ECF Nos. 86-6 thru 86-35), and has evaluated every claim of similarity found in Civility Experts’ Response (ECF No. 115 at 6-11) and in its initial disclosures (ECF No. 86-36 at 8-23).
1. Business Model
Civility Experts argues that Molly Manners “nonliterally copied Civility Experts’ model” because:
a. Civility Experts has long branded its materials with “MannersMatter” immediately followed by a geographic designation (e.g., “MannersMatterUSA”) and Molly Manners supposedly takes a similar approach with franchisee URLs (“MollyManners[City Name].com”);
b. Molly Manners “[s]ells for almost identical price $3500.00”; and
c. Civility Experts has “[t]hree core kits” aimed at ages 3-7, 8-12, and 8-12 (again), respectively, and Molly Manners has three kits aimed at ages 3-6, 7-11, and 12-17, respectively.
(ECF No. 115 at 9.)
Civility Experts may not claim copyright protection over its “model” because it is, at most, an “idea, procedure, process, system, method of operation, [or] concept, ” to which copyright protection does not extend. 17 U.S.C. § 102(b). Accordingly, these alleged similarities are not a valid basis for comparison.
2. Selection and Arrangement of Topics
As noted previously, “an original selection or arrangement” of facts or ideas is potentially protectable expression. Feist, 499 U.S. at 348. Civility Experts asserts that Molly Manners’ Nice is Right copied the selection and arrangement of topics in Civility Experts’ Macaroni and Please, and that Molly Manners’ Kool to Be Kind and The Young Sophisticate mimic the selection and arrangement of topics in Civility Experts’ Proud to Be Polite and Confidence is Cool. (See ECF No. 115 at 9-11.) The Court will address these accusations in turn.
a. Macaroni and Please vs. Nice is Right
Civility Experts’ Macaroni and Please is 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 (at the instructor’s discretion) by up to fifty minutes of worksheets and other activities. (ECF No. 86-6 at 2-4.) The topics covered in the thirty lessons are, in the order presented:
1. the concept of manners;
2. the connection between good manners and showing respect for others and for yourself;
3. politely introducing yourself to someone new, including using proper eye contact;
4. proper handshake technique;
5. the importance of smiling;
6. the concept and importance of first impressions;
7. review of all of the foregoing;
8. self-respect, including concepts such as self-esteem and grooming;
9. wearing proper clothing for the occasion;
11. table manners, with emphasis on being presentable, moderate when eating, cheerful, helpful, and not too noisy;
12. setting the table properly;
13. appropriate use of each utensil;
14. helping adults at mealtime;
15. table manners, with emphasis on not bringing distractions to the table (e.g., toys), chewing quietly and with a closed mouth, not putting elbows on the table, and similar matters;
16. review of the previous table manners lessons;
17. the importance of following rules;
18. showing kindness;
19. behavioral expectations in varying social situations, such as the contrast between behaving at school and at a birthday party;
20. showing politeness through nonverbal behavior, such as listening sincerely and waiting your turn;
21. telephone etiquette;
22. avoiding gossip, particularly whispering gossip;
23. appropriate behavior at school;
24. review of the previous twenty-three lessons, especially to ensure that the children understand new words they have learned;
25. things not to say out loud, even if true, and learning to respect differences;
26. responding to invitations;
27. party etiquette (and, nominally, sleepover etiquette, although with no instructions specific to sleepovers-compare lesson 30);
28. being a proper host;
29. showing gratitude and appreciation, verbally and in writing (e.g., thank you cards); and
30. sleepover etiquette.
(Id. at 5-95.)
Molly Manners’ allegedly infringing lesson guide, Nice is Right, presents a series of eight lessons aimed at ages 3-7. (ECF No. 86-11 at 1-2.) Molly Manners recommends presenting these eight lessons in 30-45 minute class sessions over 6-8 weeks. (ECF No. 86-27 at 12.) The topics covered in the eight lessons are, in the order presented, as follows:
1. the concept of manners, with an overview of five attributes to be emphasized throughout the course (friendliness, helpfulness, kindness, respectfulness, and patience);
2. friendliness, including-
a. behaviors friends exhibit toward one another;
b. “friendly introductions, ” including making eye contact and shaking hands (although with no instruction on handshake technique); and
c. the importance of smiling;
3. helpfulness, particularly helping around the house, including-
a. setting the table properly;
b. cleaning up after dinner; and
c. picking up toys;
4. kindness, including-
a. kind behaviors (e.g., sharing, complementing others, being inclusive on the playground, etc.); and
b. unkind words and phrases to avoid;
5. respectfulness, including-
a. using polite words (please, thank you, excuse me, etc.);
b. respecting personal space;
c. self-respect (e.g., through healthy eating, proper ...