Copyright law protects the expression of ideas in works that have some degree of creativity -- traditionally a fairly low threshold. Recent cases in some U.S. circuit courts of appeals suggest that the bar is inching higher and that judges could begin declining to protect certain traditionally copyrightable works. The trend is not monolithic, however, as other circuits are hewing more closely to traditional views of what works deserve protection. The 5th U.S. Circuit Court of Appeals has not recently decided any copyright cases principally assessing the underlying creative works. But decisions from other circuits are likely to influence the law in Texas, and lawyers should be prepared to advise their clients accordingly.
When a work simply conveys reality, courts generally do not afford it copyright protection, no matter the degree of ingenuity used to create the work. In June, the 10th U.S. Circuit Court of Appeals in Meshwerks Inc. v. Toyota Motor Sales U.S.A. Inc., et al. held that copyright protection did not extend to a digital model of a pre-existing automobile. The 10th Circuit's opinion stated that Toyota, as part of a new advertising campaign, sought to use digital models of its automobiles on its Web site and other media. Toyota hired an engineering company that used a two-step process to create the models. The company correlated physical data points of the automobiles to make computerized wire-frame models of the automobiles and then generated on-screen images to resemble it accurately. The entire process took nearly 80 to 100 hours per vehicle to complete. After Toyota used the digital models in more than one advertising campaign, Meshwerks, the registered copyright holder of the digital models, sued Toyota, alleging, among other things, copyright infringement and breach of contract.
In assessing whether copyright could protect the digital models, the 10th Circuit noted that courts should look only at the final product, not the process to make the final product. Despite recognizing that creating the digital models was expensive and intricate, the 10th Circuit found that an exact or near-exact duplicate of an original should not qualify for copyright protection. How this ruling affects copyright protection extended to other digital representations, such as photographs, in the 5th Circuit remains to be seen.
Other decisions have imposed a high burden on the author to show that his or her work meets the threshold level of creativity. Consider whether copyright protection extends to a series of maps enabling a user to find an appraiser in a desired location by pointing to and clicking on the appropriate map. The 4th U.S. Circuit Court of Appeals in Darden v. Peters held in May 2007 that copyright did not protect such maps, despite special combinations of font and color selection, visual effects such as shadowing and shading, and custom labeling and callouts.
The court noted that William Darden sought to set aside the U.S. Copyright Office's denial of his applications for copyright registration on a number of maps he created for use on his specialized Web site. He argued that information on his maps could easily be provided in many other ways and thus he should be allowed to protect his own creative efforts.
The 4th Circuit disagreed and noted that, while some maps could be copyrightable, Darden's additions to pre-existing maps lacked "even a minimum level of creativity." In the past, courts have granted protection for creative combinations of unprotectable elements. But, this case diverges from that line of older cases, as do the other cases discussed here.
HIGH BAR
Courts traditionally have held that works requiring an author to select, coordinate or arrange unprotectable elements to create an original work are protectable. Prevailing in such actions, however, is proving to be difficult and highly dependent on the facts of the case. The 11th U.S. Circuit Court of Appeals in Oravec v. Sunny Isles Luxury Ventures, et al. noted in May that "[w]hile individual standard features and architectural elements classifiable as ideas are not themselves copyrightable, an architect's original combination or arrangement of such features may be." The 11th Circuit went on to note that it would not allow broad protection for the concept of the architectural elements, because doing so would preclude architects from using those ideas in the future.
According to the 11th Circuit's opinion, Paul Oravec sued a number of companies associated with the Trump Palace and Trump Royale buildings, alleging copyright infringement of his architectural designs. Oravec presented a laundry list of elements he asserted were present in both his designs and the Trump buildings. The 11th Circuit found that, although Oravec sought protection on unique elements of his designs, granting protection over the entire design essentially would bar others from using such elements and would be "contrary to the fundamental purposes of copyright law."
Darden and Meshwerks suggest that copyright protection is not afforded to works that do nothing more than accurately convey the underlying reality. Most cases follow the reasoning in Oravec and use a "balancing test." Judges must avoid both extremes: granting protection so narrowly that authors lack incentive to produce original works and granting protection so broadly as to preclude future use of the ideas in such works.
Not all courts are moving toward stricter standards for copyright protection. In September, for example, the 3rd U.S. Circuit Court of Appeals in Facenda v. N.F.L. Films Inc., et al. reiterated that even very small portions of a previously recorded voiceover of a now-deceased broadcaster were still protectable by copyright. Facenda confirms that, despite the hard look some circuits are taking at whether a work merits protection, others courts still are upholding traditional notions of copyright.
Darin M. Klemchuk is a partner in and Bhaveeni D. Parmar is an associate with Klemchuk Kubasta LLP in Dallas. Klemchuk focuses on intellectual property litigation and protection, commercial and business litigation, and technology law. Parmar focuses on assessing, managing and protecting intellectual property, with an emphasis on litigating patent, trademark, copyright and trade-secret disputes.
