Eighth Circuit Gives Give Permanent Hall Pass to Teacher

Continuing my review of the large number of unpublished court of appeals decisions, the 8th Circuit recently rejected a probationary teacher’s claim of copyright infringement in a hall pass for elementary school students. The opinion doesn’t reveal what the parties' hall passes said, but the room for creativity would seem remote. Clark v. Crues, 2008 WL 145255 (8th Cir. Jan. 8, 2008).

As explained by the court, per curiam:

This appeal concerns a “behavioral modification program,” known as the “Out of Area Program,” that Clark claims he developed and implemented while he was employed by the St. Louis, Missouri public school system as a probationary teacher. The Out of Area Program consists of a set of written materials intended for use by teachers and other school personnel to help control and modify disruptive behavior by students. After Clark's employment was terminated for reasons that the defendants assert are unrelated to this appeal, Clark sued the defendants, asserting, inter alia, patent and copyright infringement. On appeal, Clark challenges the district court's dismissal of his patent and copyright claims. …

As to the copyright claim, the district court held that the “Out of Area Program constitutes a business idea, excluded from copyright protection under 17 U.S.C. § 102(b).” Memorandum & Order at 10. We agree. The Complaint alleges that the defendants “used the same concept referencing Hall Pass procedures” as in the Out of Area Program. See id. at 9. Such general concepts and ideas are beyond the purview of copyright law. See Mazer v. Stein, 347 U.S. 201, 217 (1954) (“[A] copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the idea-not the idea itself.”). At best, Clark alleges that his hall pass, Appellant's Br. attach. 24d, and a hall pass that was used in the 2004-05 school year at Roosevelt High School, id. attach. 24e, share language that restricts the use of hall passes during the first and last ten minutes of class. However, the passes are not otherwise alike, and the district court correctly concluded that this limited use of similar functional language does not constitute copyright infringement even if, as Clark alleges, the defendants deliberately copied Clark's ideas. See CMM Cable Rep, Inc. v. Ocean Coast Props., Inc., 97 F.3d 1504, 1519-20 (1st Cir.1996) (denying copyright protection to phrases such as “clock in” used in a radio promotional contest as an employment metaphor, and stating that “copyright law denies protection to ‘fragmentary words and phrases' and to ‘forms of expression dictated solely at functional considerations' on the grounds that these materials do not exhibit the minimal level of creativity necessary to warrant copyright protection”).

I also wonder why work for hire didn’t play a role: I would have thought that even probationary employees are employees, if not under state labor laws, under federal copyright law.