Monday, September 30, 2013

Website footer still isn't CMI; short phrases still unprotectable

Personal Keepsakes, Inc. v., Inc., No. 11 C 05177 (N.D. Ill. Sept. 24, 2013)

Previous discussion, with pictures. PKI makes gift items personalized with poetry verses, sold at its website  Defendant Techny is a competitor and alleged copyright infringer/violator of the DMCA’s copyright management information (CMI) provisions.  Techny allegedly copied PKI’s poems on competing products: Techny’s “Petite Poetry Gift,” “To Our Ring Bearer,” “To Our Flower Girl,” and “On Your Confirmation Day” all contain language from PKI’s works.  Techny moved to dismiss claims related to “On Your Confirmation Day” gifts. Techny argued that the disputed phrase wasn’t copyrightable because it was too common, unoriginal, and short.  The registration at issue said the title of the work was “Personal Keepsakes,” and the claimant characterized the work as an “Entire Collection of Poems.” The relevant portion was an excerpt titled “On Your Confirmation Day” which reads:


May the strength of the Holy Spirit be with you, guiding you every day of your life.

On Techny’s website, “My Confirmation Day” (available for an engraved class picture frame) reads: “‘When you send forth your Spirit, they are created, and you renew the face of the earth’ – Psalm 104:30 May the strength of the Holy Spirit be with you, guiding you every day of your life.”

The verse was too common and unoriginal to receive copyright protection.  “May the strength of the Holy Spirit be with you,” was “of a kind” with the common blessings “May the strength of the Lord be with you,” “May the Lord be with you,” or “God be with You,” which are “widely used and decidedly not original.”  A Google search on “may the strength of the lord be with you” produced about 10,800 results, and “may the strength of the holy spirit be with you” produced about 476 results on Google.

This was particularly true given that the phrase was so brief.  Short phrases and expressions aren’t copyrightable.  “The allegedly copied portion of the collection of poems here is a single sentence of two short phrases; it is perhaps long enough to be copyrightable if it were original, but there is not an appreciable amount of original text presented here.”  Thus, other cases finding short phrases protectable (note: wrongly decided) were inapposite, because they involved originality and at least minimal creativity (“E.T. Phone Home” and “You might be a redneck if . . . [punchline]”).  In light of the phrase’s generic nature, the copyright infringement claim was implausible, and PKI’s assertion of validity didn’t change matters.  As Techny pointed out, the registration was for an entire collection of poems, which is prima facie evidence of validity of the entire collection, but that didn’t help PKI show that it owned “May the strength of the Holy Spirit be with you, guiding you every day of your life.”  (PKI somewhat misleadingly redacted all but the “poem” at issue in the copy of the certificate of registration it used—six pages of text with 20 titles.)

Techny’s alternative argument was lack of substantial similarity after unprotectable elements had been filtered out.  The court agreed. Although the phrases were identical, substantial similarity requires an ordinary observer to conclude that the protectable elements of the plaintiff’s work were copied. “Here, when the portion of the expression at issue that is not copyrighted, or could not properly be copyrighted, is set aside, there is virtually nothing of PKI’s allegedly protected work left to compare with Techny’s version for substantial similarity.”  Indeed, even given Techny’s conceded access, the unoriginality of the phrase rebutted an inference of copying.

Separately, PKI alleged that Techny violated the DMCA by removing the CMI, such as the website name and associated copyright notice, from PKI’s poems and substituting its own CMI on pages selling the allegedly infringing products and Techny’s general website terms and conditions, which claimed copyright over the site contents.

Techny argued that the material it allegedly removed or altered was not CMI.  PKI’s claims were based on (1) the name, (2) the titles of the works, and (3) the copyright notice on every page of the website. As the predecessor judge held, though, “ cannot be CMI . . . because the copyright registrations attached to the complaint show PKI, not, as the owner of the copyright.”  The website was at best an indicator of the seller, not a statement about copyright status: “ does not suggest that Amazon owns copyrights with respect to every product it sells.”  Nor could the titles be CMI because the registrations didn’t list the titles of the works as they appeared on PKI’s website.  CMI is supposed to inform the public, but if someone searched the poem’s title, the search would fail because the title of the work is not “On Your Confirmation Day” etc. on the registration. “Allowing a plaintiff to make out a DMCA claim based on alleged CMI that does not link up in any way to the copyright registration is an invitation to unfair litigation against parties who have tried to tread carefully to avoid copyright infringement.”

Also, the court agreed with other courts that have held that “a defendant must remove the CMI from the ‘body’ or the ‘area around’ the work to violate DMCA.”  This is consistent with the statutory text, which requires CMI to be “conveyed” with the copyrighted work.  Simply printing information somewhere on the website won’t suffice.  The only alleged CMI was on the website, not on the poems or phrases themselves, and thus no CMI was removed.  “Such a rule prevents a ‘gotcha’ system where a picture or piece of text has no CMI near it but the plaintiff relies on a general copyright notice buried elsewhere on the website.”

The false CMI claims failed for the same reason: PKI alleged that Techny posted a notice attributing copyright ownership in the infringed works to or some other website(s) as the copyright claimant. But that copyright notice wasn’t close to the poem.  It was in the website footer at the bottom of every page and thus not “conveyed with” the poems. The notice claims some IP rights in the website, not ownership of a copyright on all its products.

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