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Creativity doesn’t have to be fancy
“Run-of-the-mill” certificate qualifies for copyright protection
Copyright protection applies only to original works — but you might be surprised at just how low the bar for originality is under federal copyright law. In Premier Dealer Servs. Inc. v. Allegiance Admr’s LLC, a case involving an auto dealer’s loyalty certificate, the court found that even “the dull and workaday” can qualify for protection.
Certificate fuels dispute
Premier Dealer Services competes with Allegiance Administrators to manage auto dealers’ loyalty programs, whereby customers arrange to have their cars serviced at the dealership after purchase. In 2008, Premier designed a two-page loyalty certificate to collect an auto owner’s personal information and spell out the program’s terms and conditions. It registered the form for copyright protection in 2012, within five years of initial publication, which gave the copyright a statutory presumption of validity.
In 2018, one of Premier’s clients switched to Allegiance to administer its loyalty program. It continued to use the Premier loyalty certificate and provided Allegiance a copy. Allegiance substituted its contact information but left the remainder of the certificate intact and incorporated the certificate into its own plan.
Premier sued Allegiance for copyright infringement. The trial court granted pretrial judgment to Premier and awarded a portion of Allegiance’s profits from using the certificate. Allegiance appealed to the U.S. Court of Appeals for the Sixth Circuit, arguing the certificate wasn’t entitled to copyright protection because it wasn’t sufficiently original.
Driving over the threshold
The appellate court began its analysis by noting the threshold for originality is low, requiring only a minimal degree of creativity. This is met when authors make nonobvious choices from among more than a few options. Examples include choices about style and setting, as well as decisions about which materials to include and how to organize it.
Most works satisfy the low creativity standard, no matter how basic the subject matter. But other qualifications do apply. For instance, copyright protection doesn’t extend to “scenes a faire,” which arise when the expectations of an industry or subject matter require an author to express facts in a particular way — in other words, when only a few choices are feasible for that setting.
An example of a work not meeting the threshold requirement for copyright is a phone book that collects the facts of residential phone numbers and addresses and expresses them alphabetically according to homeowners’ last names. Other ordering options are available, but alphabetical order has come to be expected, so the originality falls short of that required for copyright.
But the court held that Allegiance’s originality challenge to Premier’s copyright fell short. The “run-of-the-mill” subject matter of the certificate didn’t detract from Premier’s creative choices in crafting it.
In addition, the appellate court rejected Allegiance’s contention that the scenes a faire doctrine applied, finding Allegiance failed to produce evidence that external constraints dictated how Premier created its certificate. Rather, Premier’s certificate expressed the idea of a particular type of loyalty program, and comparison of Premier’s certificate with others that Allegiance had submitted showed that companies can choose different ways to express that idea.
The court highlighted several differences between Premier’s certificate and others. For example, Premier’s certificate included a distinct section on eligibility that covered different categories of required maintenance, including a selection of mileage options between required oil changes. A rival form lacked this section and provided only a single oil change standard.
The certificates’ content also expressed the idea of covering damage to a vehicle in different ways. Premier’s certificate identified several categories of covered parts, some of which depended on whether the part had damage from “mechanical failure to an internally lubricated part.” The rival form listed different parts under the single heading of “Engine” and offered to expand coverage to other components in the event of “mechanical failure … caused by the above-listed parts.”
Copyright doesn’t require a lot
In affirming the district court’s decision, the appeals court emphasized that copyright laws protect all manners of works. The only necessity is to satisfy the “modest imperatives of originality.”
Sidebar: Mileage may vary: Different form, different result
Just a few weeks before the judgment in the Premier Dealer case (see main article), a different federal appeals court, the U.S. Court of Appeals for the Eighth Circuit, considered whether another auto dealership form was copyrightable. In Ragan v. Berkshire Hathaway Automotive, Inc., the court concluded that the form lacked the necessary originality.
The plaintiff had obtained a copyright registration for a customer intake form that purportedly helped dealerships sell cars. The form included questions, prompts, headings, fill-in-the-blank lines and checkboxes; it consisted of fewer than 100 words. When the plaintiff sued a dealership that allegedly used the form without permission, the dealership argued the form wasn’t copyrightable.
The plaintiff claimed the selection and arrangement of words used as headings and question prompts made the form sufficiently original, but the appellate court disagreed. The mere selection of words — as opposed to selecting and grouping categories and subcategories, as in Premier Dealer — doesn’t make a work copyrightable. The form needed to exhibit some degree of creativity. The court found it didn’t because it didn’t convey information.
From the August/September 2024 Cantor Colburn IP Newsletter © 2024
