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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