Monday, September 24, 2012

Collaborative problem solving becomes non-collaborative, but still jointly authored

Greene v. Ablon, 2012 WL 4104792 (D. Mass.)

Ross Greene sued J. Stuart Ablon, a fellow doctor, and Massachusetts General Hospital (MGH).  Greene alleged copyright infringement, breach of fiduciary duty, unjust enrichment, tortious interference, conversion, unfair competition, and trademark infringement.  He sought dissolution of a corporation, the Center for Collaborative Problem Solving, jointly owned and directed by Greene and Ablon.  MGH counterclaimed for trademark infringement, false advertising, and unfair competition.

In 1993, Greene “created a treatment approach for collaboratively resolving problems between children with social, emotional and behavioral challenges and their caregivers,” which came to be known as the Collaborative Problem Solving Approach, though when exactly this name developed was disputed. 

In 1993, Greene also opened an unaffiliated private therapy practice and also began work part-time at MGH, using the CPS Approach as part of his outpatient therapy services.  He agreed to abide by MGH’s rules.  He successfully reapplied for his position at MGH several times, each time agreeing to abide by MGH policies.  MGH’s intellectual property policy said that “[t]rademarks shall be owned by MGH if they are created by [professional staff] Members in the course of their employment or affiliation with an [MGH-affiliated] Institution or if they are used to identify any product or service originating with or associated with [such] an Institution,” and “[a]ny Intellectual Property not specifically covered by the [express terms of the 1995 IP Policy] shall be owned by an [MGH-affiliated] Institution if it is created in the performance of Sponsored or Supported Activity at that Institution,” with “Supported Activity” defined as “activity that receives direct or indirect financial support from an [MGH-affiliated] Institution” and “Sponsored Activity” defined as “any activity that is subject to a grant, contract or other arrangement between an [MGH-affiliated] Institution and a third party.”  (A later version of the policy altered the wording but was substantively the same for these purposes.)

In 1997 and 1998, Greene wrote The Explosive Child: A New Approach for Understanding and Parenting Easily Frustrated “Chronically Inflexible” Children for adult caregivers.  It was published by HarperCollins in 1998.  Greene had registered copyrights to four editions of the book.  He also created a series of slides summarizing and excerpting content from various editions, but didn’t register a copyright for the slides.

In 1998, Greene was the principal investigator for a study at MGH testing the CPS approach, and he supervised Ablon, a post-doctoral fellow at MGH.  Their relationship grew, and Ablon rentered office space from Greene where they both ran private practices.  They worked together to promote the CPS approach, and Greene referred patients and speaking engagement opportunities to Ablon. In 2001, Greene filed an application to register “Collaborative Problem Solving Approach”; the application was denied on descriptiveness grounds, but subsequently registered on the supplemental register

In 2002, Greene and Ablon jointly founded the Collaborative Problem Solving Institute as a part of MGH's Department of Psychiatry. The CPS Institute used MGH's non-profit status and MGH's development office to solicit tax-deductible contributions, donations to the Institute were held in an MGH-administered fund, and the MGH logo was on the Institute's website. Greene was the director.  In the same year, Greene and Ablon incorported the CPS Clinic, with 50% ownership for each.  Through both the Institute and the Clinic, Greene and Ablon “provided trainings, seminars, workshops and consulting services, and created and distributed DVDs and other training materials, all using and promoting the CPS Approach.”  They showed slides to trainees and seminar participants; these slides had been jointly refined over years.

They also prepared a prospectus of a book “geared toward clinicians actively trying to implement the CPS model with their patients.”  Greene stated that the work was anticipated to be “a genuine work of co-authorship.”  They signed a contract with Guilford Publications to publish the book, Treating Explosive Kids: The Collaborative Problem Solving Approach. The contract identified Greene and Ablon as the authors.  The extent of Ablon’s actual contribution to Treating Explosive Kids was disputed—Greene said it was less than 15 pages out of 226, while Ablon said that he provided “most if not all of the treatment vignettes” that appear on “about 145 pages of the book,” “took the lead in writing Chapter 8 ... which wound up being 25 pages long,”“wrote significant portions of other portions of the book,” and “reviewed and made suggestions for many other sections.”  When the book was published in 2005, Guilford registered the copyright in its name, rather than those of the “author’s” [sic] as specified in the contract, though the registration did list Greene and Ablon as the authors and the book itself identified them as co-authors throughout the book, including the use of authorial “we” and “us” in the acknowledgments and epilogue.  Consistent with their contract with Guilford, Greene and Ablon also worked on a book discussing the use of the CPS approach in schools, but Greene ultimately asked Ablon to remove his name from the book, and Ablon agreed.

In 2007, Ablon and Greene, with “assistance from marketing and branding professionals hired through and ultimately paid by MGH,” allegedly rebranded the CPS Institute at MGH under the name “Think:Kids.” Its website said that “Think Kids is an initiative of the nonprofit Collaborative Problem Solving Institute in the Department of Psychiatry at Massachusetts General Hospital, Boston, Massachusetts.”  The CPS Institute at MGH also applied to register Think:Kids: Rethinking Challenging Kids and Think:Kids; these registrations ultimately issued.  In 2007, Greene and Ablon also merged the CPS Clinic into the CPS Center, leaving only the Center as a private, MGH-unaffiliated organization run by Greene and Ablon.

Unfortunately, by 2008, the relationship had soured, requiring work through attorneys and by a mediator.  In 2008, Greene again attempted to register “Collaborative Problem Solving” and “Collaborative Problem Solving Approach” on the principal register, again denied on descriptiveness nouns.  Greene’s responses argued that the marks had substantially exclusive use in commerce in connection with “my model of care,” but didn’t mention MGH. MGH opposed registration.  Ablon resigned from the CPS Center in late 2008, and began working full-time as the director of MGH’s Think:Kids program.  In early 2009, MGH terminated Greene’s employment.

The court first analyzed the copyright claims.  The CPS approach itself was an unprotectable idea.  Furthermore, any claims by Greene had to be based on The Explosive Child, not the related Powerpoint, since there was no registration for that.  The court then turned to whether Treating Explosive Kids was a derivative work, but found that the question could not be resolved on the summary judgment record.  The ideas of The Explosive Child were surely incorporated into Treating Explosive Kids, but that wasn’t enough.  The Treating Explosive Kids registration certificate didn’t claim derivative work status, and the prospectus indicated that the book would “provide mental health clinicians with an intensive, in-depth orientation to CPS,” which the prospectus described as a model “first articulated by Ross W. Greene, Ph.D., in his highly acclaimed book The Explosive Child,” but didn’t indicate that the proposed book would in any way incorporate text from The Explosive Child.  This was evidence that what was borrowed was ideas, not expression.  However, a cursory comparison of the works did show sufficient similarities between the two works to create a fact issue, apparently focused on descriptions, organizations, etc.  Moreover, though subjective intent wasn’t determinative, Greene averred that he intended to include portions of The Explosive Child and that he and Ablon agreed that the new book would be “derived from [Greene's] earlier works” and would “contain material derived and copied from [Greene's] prior works.”

But that didn’t preclude summary judgment, since Treating Explosive Kids was a joint work (thus entitling Ablon to do whatever he wanted with it subject to a duty to account to Greene).  The essence of joint authorship is joint labor to produce a unitary work.  Equal contributions aren’t required as long as a joint author’s contribution is more than de minimis.  The First Circuit hasn’t addressed whether the contribution must itself be copyrightable, but that wouldn’t affect the outcome here, since even accepting Greene’s characterizations Ablon’s contributions, including treatment vignettes, were significant enough to be copyrightable as well as more than de minimis.

Greene argued that there was a material factual dispute over whether the parties intended the book to be a joint work.  “The key legal question is not whether the parties intended Treating Explosive Kids to be a joint work in any colloquial sense, but rather whether they intended their individual contributions to be ‘merged into inseparable or interdependent parts of a unitary whole’ rather than into separable and distinct works.  And on this there was no jury-worthy dispute.  “[W]hile Greene's affidavit may suggest at points that he was frustrated with the quantity and quality of Ablon's early contributions to the book and thus believed that the authorship process was not a truly joint enterprise, there is no evidence that either Greene or Ablon believed that Treating Explosive Kids was anything other than a unitary book, and there is abundant evidence that Ablon's contributions to the book would be interdependent with Greene's contributions.”

MGH also successfully moved for partial summary judgment on the argument that Greene’s employment agreements meant that MGH owned the CPS and Think:Kids service marks.  His formal notices of appointment (he applied and reapplied ten times over the years) was the equivalent of an employment contract, and imported by reference MGH’s IP policies.  Greene argued that he wasn’t subject to the IP policies because they didn’t exist when he first came to MGH.  But he agreed to abide by them when he submitted his appointment applications after they came into effect.  His argument that MGH didn’t tell him about the IP policies didn’t help, because in two of his applications he specifically agreed to read MGH’s policies, and also because even in the absence of that promise a party to a contract is assumed to have read and understood its terms.

The court agreed that two separate parts of the policies gave MGH ownership of the CPS marks: they were used to identify services associated with MGH, and they pertained to/were created during the performance of significant activities that received financial support from MGH and funding from outside sources that was subsequently administered by MGH. 

Likewise, under the later version of the policy, which was in place when the Think:Kids rebranding occurred, MGH owned the Think:Kids marks.  The CPS Center registered those marks on the principal register, creating a rebuttable presumption of ownership, but under the terms of the employment agreements, the marks were created in the course of Greene and Ablon's affiliation with MGH, not as part of their affiliation with the CPS Center; they were used to identify services associated with MGH; and the marks pertained to significant institutional activities.  Each finding brought them within the scope of the IP policy. 

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