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From Intellectual Property Law Daily, December 18, 2018

Competing instructional manuals for Microsoft Office certification courses were not substantially similar

By Thomas Long, J.D.

In a dispute between two competing developers and publishers of instructional manuals for Microsoft Office programs, plaintiff Logical Operations Inc. failed to raise a genuine issue of material fact with respect to its allegation that defendants 30 Bird Media, LLC, and three of its officers infringed Logical’s copyrights by designing their materials to mimic Logical’s series of manuals, the federal district court in Rochester, New York, has decided. The only similar features between the parties’ works were not protectable by copyright, and any protectable elements were not substantially similar, as a matter of law. However, the court denied the defendants’ motion for attorney fees, without prejudice, because they did not develop any argument as to why they were entitled to fees under 17 U.S.C. §505 (Logical Operations Inc. v. 30 Bird Media, LLC, December 17, 2018, Geraci, F.).

At issue was Logical’s "Axzo ILT Series" of instructional manuals for Microsoft Excel, Outlook, and Word. The manuals were originally published by Axzo Press, and Logical obtained the copyrights when it acquired that company in 2014. The manuals were intended for in-class instruction to prepare students for Microsoft certification exams. They were sold in instructor and student versions. In 2015, 30 Bird decided to develop a competing line of Microsoft Office coursework and hired a former Axzo designer who had worked on the Axzo ILT Series, defendant Adam Wilcox, as CEO. 30 Bird made Wilcox a part owner and hired additional former Logical and Axzo Press employees. According to Logical, 30 Bird’s designers used the Axzo ILT Series as the model for 30 Bird’s series of manuals and, in doing so, substantially copied its design, look, and feel. In July 2015, Logical filed suit against 30 Bird and three of its officers, including Wilcox, asserting one claim of copyright infringement. The defendants filed a motion for summary judgment, as well as a counterclaim requesting an award of attorney fees under Section 505 of the Copyright Act.

Copyright infringement. The defendants argued that they were entitled to summary judgment on the infringement claim because Logical could not demonstrate that protectable elements of the parties’ respective works were substantially similar. Logical countered by contending that it could establish substantial similarity based on a comparison of the manuals’ total concept and feel.

Protectable and non-protectable elements. Summary judgment on a claim of copyright infringement is appropriate if the only similarity between the works is with respect to non-copyrightable elements, the court noted. The court applied the "more discerning observer" test, which is generally applied in the Second Circuit when an asserted work is not "wholly original" and incorporates elements from the public domain. That test requires substantial similarity between the elements that provide copyrightability to the asserted work, and non-protectable elements are filtered out of the analysis.

The parties’ works in this case presented factual information and functional directions which themselves were not copyrightable, the court said. Moreover, the court explained that even the expression, selection, and arrangement of the facts in the works might not be protectable, to the extent that those features are driven by demands outside of the author’s originality. The works could be protected by copyright with respect to the authors’ creative choices in describing processes and systems, including the works’ overall arrangement and structure.

Approximately 70 manuals were in dispute; the court compared one Logical work—Microsoft Excel 2010, Basic, Instructor’s Edition ("the Axzo Manual")—to one 30 Bird work—Microsoft Excel 2010 Level 1, Instructor Edition ("the 30 Bird Manual")—as exemplars. Logical contended that the manuals were in their "overall page appearance, layout, and approach." There was authority that book designs—their spacing, page width, font, headers, etc.—were not in themselves copyrightable, the court said. However, there was also authority that the creative arrangement and coordination of textual and graphic elements were protectable. Logical did not assert that the defendants engaged in verbatim copying of text or graphics; nor did it point to instances in which 30 Bird made only minor or immaterial variations to reproduced material. Instead, Logical argued that the 30 Bird Manual: (1) used some of the same words in its exercise instructions; (2) told students to include the word "My" in document names; and (3) used fake companies as part of its exercises. Logical also contended that the 30 Bird Manual adhered to the same bolding, italicization, and font conventions as the Axzo Manual. These elements were not protectable, the court said.

Logical also identified "the generalized topic structure" as one element of similarity between the parties’ manuals. The court was not convinced that Logical’s selection of topics was protectable. The selection of topics seemed to be dictated by the subject matter and the purpose of the manuals. Additionally, the organization of the chapters in the manuals, while similar, seemed to reflect the pedagogical method or technique being employed by them, which was not copyrightable. The arrangement of topics could be protected, however, as part of the Axzo Manual’s "total concept and feel." Creative choices could be made in deciding how to lay out a lesson in accordance with a general pedagogical framework. The court also stated that the Axzo Manual’s unique juxtaposition of exercises with tables laid out in a two-column format could be considered in assessing substantial similarity.

Finally, the court determined that the particular look and arrangement of instructor cues and exam objectives could be considered. Although the idea of using instructor cues was not protectable, the specific expression of them could be.

Comparison of works. Turning to the works themselves, the court concluded that a reasonable observer could not find the Axzo Manual and 30 Bird Manual substantially similar. "Although the Court is persuaded that the Axzo Manual contains protectible expression, the Court is not convinced that the 30 Bird Manual has copied such expression to the point of substantial similarity," said the court. "In arguing to the contrary, Logical does not assert that the 30 Bird Manual copied any particular exercise, mimicked any particular topic, or replicated any particular review question." Logical did not argue that 30 Bird copied any of the Axzo Manual’s substantive content. Although the works’ tables had several similar design elements, the content of the tables—the instructions, the explanatory content, and the graphics—were dissimilar. When the content was considered along with the design features, the tables did not convey substantially similar expression. Similarly, while the 30 Bird Manual used some of the same chapter and subchapter titles as the Axzo Manual, the works displayed different graphics and provided different explanations, exercises, and review questions. The instructor cues were aesthetically different. The similarities between the works were largely confined to unprotectable ideas or minor elements, such as layout and arrangement. Accordingly, the works could not be found substantially similar, as a matter of law, the court concluded, and the defendants were entitled to summary judgment on the copyright infringement claim.

Attorney fees. An attorney fee award under Section 505 to a prevailing party was not automatically granted, the court noted. Because the defendants made no argument as to why they were entitled to fees, the court denied their motion without prejudice.

This case is No. 6:15-cv-06646-FPG-JWF.

Attorneys: Eric J. Ward (Ward Greenberg Heller & Reidy LLP) for Logical Operations Inc. Elizabeth A. Cordello (Law Offices of Pullano & Farrow, PLLC) and Langston David McFadden (Pullano & Farrow PLLC) for 30 Bird Media, LLC.

Companies: Logical Operations Inc.; 30 Bird Media, LLC

MainStory: TopStory Copyright NewYorkNews

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