Mary Lippitt has pursued excellence in the organizational management field for many years. In 1987, she created a diagram “to encapsulate and communicate the results of her research on the failures of complex organizational change initiatives.” (Opinion pdf page 2). The diagram provided a visual depiction of her determination of the most basic variables and likely outcomes. She registered her copyright in the work containing the diagram. At the time of this litigation, she no longer had a copy of the work she originally registered. She registered other versions of the diagram as part of other works she created in 2000 and 2003.
Donald W. Warrick teaches in the organizational development field. He admitted to copying Lippitt’s diagram and even credited her at the bottom of some of his versions of the diagram. Lippitt sued Warrick for copyright infringement. Warrick brought a motion for summary judgment, arguing that Lippitt could not prove ownership of a valid copyright, that the diagram was not copyrightable and that Warrick’s diagram did not infringe protectable expression in Lippitt’s diagram. The district court granted Warrick’ motion for summary judgment without issuing a written opinion. The Tenth Circuit Court of Appeals reversed, ruling that Lippitt’s expression did not merge with the underlying ideas, that Lippitt selected, coordinated and arranged the elements of her diagram in an original way and that Lippitt did meet the statutory registration requirement.
There are two elements to a copyright infringement claim; a plaintiff must show both ownership of a valid copyright, and copying of protectable constituent elements of the work.
(Opinion pdf page 7).
Merger of Idea and Expression
Ideas, procedures, processes, systems, methods of operation, concepts, principles and discoveries are not protected by copyright. 17 U.S.C. §102(b). Copyright protects the expression of ideas, but not the underlying ideas. Some ideas can be expressed in only one way. When that occurs, the expression is not protected by copyright. The expression merges with the idea under the “merger doctrine.” The theory is that the courts do not want to give a copyright monopoly for the underlying idea to the author. When an idea can be expressed in many different ways, the expression of the idea can be protected by copyright.
Warrick argued that Lippitt’s diagram consisted of only unprotectable ideas that merged with the expression and was therefore not eligible for copyright protection. The Tenth Circuit disagreed.
Warrick misses the point. Although Lippitt’s diagram may express an idea, Warrick could express the same ideas in his own fashion.
(Opinion pdf page 9).
The court described a number of ways in which Warrick could have expressed the same idea without copying Lippitt. The court ruled that “because there are many ways to express the ideas depicted in Lippitt’s diagram, the expression does not “merge” with the underlying ideas.”
Eligibility of Lippitt’s diagram for copyright protection
After the court determined that the expression in Lippitt’s diagram did not merge with the idea, the next step was to examine whether the constituent elements of her diagram were eligible for copyright protection. This analysis involves determining whether Lippitt selected, coordinated and arranged the elements of her diagram in an original way. Warrick argued that she did not.
Warrick’s view misses the forest for the trees. Any copyrightable work can be sliced into elements unworthy of copyright protection. Books could be reduced to a collection of non-copyrightable words. Music could be distilled into a series of non-copyrightable rhythmic tones. A painting could be viewed as a composition of unprotectable colors. Warrick’s impulse to unpack Lippitt’s diagram into ever-smaller and less-protectable elements is understandable, as copyright jurisprudence tends toward dissection. Nevertheless, a limiting principle constrains this reductionism. We must focus on whether Lippitt has ‘selected, coordinated, and arranged’ the elements of her diagram in an original way.
(Opinion pdf page 11).
The Tenth Circuit ruled that the two versions of Lippitt’s diagrams that were before the court demonstrated creative insight. This creative insight arose from Lippitt’s arrangement and choices of expression.
In Diagram 1A, she portrays the necessary components of organizational change as blocks or bricks, suggesting how they build on each other. In Diagram 1B, she uses mathematical symbols to illustrate how the essential components of organizational change must be combined to achieve successful organizational change. In both versions, she selects a particular word to crystallize the kind of failure resulting from any missing, but necessary, component. She has arranged the components from left-to-right in a particular order. And, both versions show the essential components chained together in a way suggesting they are vitally linked. These expressive choices push Lippitt’s diagram into the realm of copyrightability.
(Opinion pdf page 12).
Registration and Copying
According to the court, the statutory formality of registration is a separate issue from proving the content of the allegedly infringed work. Warrick argued that Lippitt had to produce the original work as registered to fulfill the statutory copyright registration requirement. The court ruled that Lippitt did fulfill the statutory copyright registration requirement.
The court indicated that copyright registration is not a requirement for copyright protection. Registration is necessary only when the copyright holder chooses to sue for infringement. Lippitt satisfied the statutory registration requirement by fixing her diagram by writing it down in 1987, then registering several works containing versions of the diagram.
If the same party owns a copyright in both a derivative work and the underlying work that is incorporated in the derivative work, registration of a copyright in the derivative work is sufficient to permit an infringement action on either the preexisting (unoriginal) material or on any newly contributed material.
(Opinion pdf page 13).
Lippitt testified at her deposition that the diagram was included in the materials she registered in 1987. Warrick did not present evidence to the contrary.
Regarding evidence of copying, Warrick admitted to copying a version of Lippitt’s diagram. That was enough evidence of direct copying to satisfy the court. The court did not require Lippitt to indirectly demonstrate copying by showing access and substantial similarity.
This case is Enterprise Management Limited, Inc. v. Warrick, No. 12-1135, Tenth Circuit Court of Appeals.