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discussion, with pictures. PKI makes gift items personalized with poetry
verses, sold at its website poetrygifts.com.
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:
GOD BLESS YOU ON YOU [sic] CONFIRMATION DAY
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 www.poetrygift.com
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 www.poetrygift.com name, (2) the titles of the works, and (3) the
copyright notice on every page of the website. As the predecessor judge held,
though, “Poetrygift.com cannot be CMI . . . because the copyright registrations
attached to the complaint show PKI, not poetrygift.com, as the owner of the
copyright.” The website was at best an
indicator of the seller, not a statement about copyright status: “Amazon.com
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 giftsforyounow.com 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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