Ricky Gervais Inspires Copyright Opinion

I am a huge fan of English comedian Ricky Gervais, the star and c-creator of The Office and Extras. Of these two, I prefer Extras: the episode with Kate Winslet, playing a nun in a Holocaust movie, who off the set gives one of the extras advice about phone sex, is delicious. But The Office is better known in the U.S. because of the American version starring Steve Carrell. There are many fans of The Office, including, it appears U.S. District Judge William Young of Massachusetts. This factoid is derived from a February 28th opinion of his, Situation Management systems v. ASP Consulting Group, F.Supp.2d ----, 2008 WL 538808 (D.Mass.)(available here), Civil Action No. 06-11557-WGY.

The opinion is a masterpiece of analysis and witty writing. Judge Young takes on some of the most thorny issues in copyright in a clear headed way that is both educational and a delight to read. The opinion is not a landmark opinion, but instead an excellent execution of an everyday task, the importance of which is frequently overlooked. To continue the architecture theme, we focus too much on the big, bold, signature buildings, the ones that shape the skyline and that come to define the image of a city. But as the great architectural critic Ada Louise Huxtable,
once pointed out, it is the mass of the other buildings that actually make up the fabric of a city: the buildings that we live or shop in, the buildings that fill up the blocks. If these buildings are done well, the city has a character and strength that will support the rest, whereas isolated structures of genius will be isolated if the supporting cast is poor.

In the case of law, we focus on Supreme Court opinions and occasionally circuit opinions. The Supreme Court has however come to abdicate its role as a leader by acting as 9 separate law firms responsible only to the individual Justices rather than acting in the interests of the Court as an institution or the county as a whole. Circuit court opinions may well be important, but it is in the district court that the day to work is done and where justice is usually meted out or not. How well the district courts do their job is important indeed, and it is for this reason that Judge Young’s opinion, even though in an “unimportant” case is important: he demonstrated a level of excellence that informs and educates all of us.

The dispute arose when one group of employees left the company with a management change, and the new management took to the courts to beat the competitors. The works at issue were business training programs. Here is one section from the opinion:

MS alleges that ASP has infringed materials associated with three programs, Positive Power & Influence, Promoting and Implementing Innovation, and Positive Negotiation. Although they are undoubtedly entitled to more protection than the white pages in Feist, they are dominated by unprotectable material. These works exemplify the sorts of training programs that serve as fodder for sardonic workplace humor that has given rise to the popular television show The Office and the movie Office Space. They are aggressively vapid-hundreds of pages filled with generalizations, platitudes, and observations of the obvious. While the workbooks' vague character may serve SMS well in the marketplace where it meets the demands of clients in different industries, they lack the “incident” that Judge Hand described as essential for differentiating the works from the underlying ideas. To the extent that the works contain expression, they are largely noncopyrightable because they are devoted to describing a process or because they are not original.


….
SMS's works do contain copyrightable expressions, but its right to exclude others is limited to little more than its original text and formatting. At their creative zenith, these works translate common-sense communication skills into platitudinal business speak. One engaged in the industry might refer to the practice as jargonization. When an noncopyrightable idea is cloaked in a neologism such as “innovision,” copyright law permits protection over the cloak, but not the concept or the process it describes. See 17 U.S.C. 102(b). Harwood, Moore, and anyone else is free to create programs addressing the same topics and processes, so long as their final product is sufficiently distinct.

The court’s discussion of substantial similarity is also excellent. Here is an excerpt:

ASP's motivations are not relevant because SMS has failed to prove substantial similarity. Finally, the motivations of former SMS employees are irrelevant because the works are not substantially similar. In a post-hearing brief, SMS emphasizes that “there was profound bitterness when the Malouf family took over SMS as a result of litigation and ASP's Moore and Harwood were both fired. Moore threatened to get even with Ms. Malouf by stealing SMS materials and take [sic.] their clients.” Pl.'s Post Arg. Br. at 4 (footnote omitted). SMS misses the point; bitterness, however profound, is not the touchstone of copyright infringement. “[A] defendant may legitimately avoid infringement by intentionally making sufficient changes in a work which would otherwise be regarded as substantially similar to that of the plaintiff's.”

For example, presuming Shakespeare's poetry was subject to copyright, an aspiring poet might purchase a collection of his sonnets and select one to serve as the inspiration for her own poem. She might select Sonnet 18 and attempt to emulate the poem's depiction of unwavering beauty by borrowing his iambic pentameter and even a word or short phrase, fully intending to write a poem that will usurp the Bard's virtual monopoly on romantic sonnets and win fame and fortune for herself in the process. The aspiring poet's motives are of no moment so long as the final product is not substantially similar to the original.

In this case, the Court has already found that, like the aspiring poet, Harwood and Moore used SMS's works to create ASP's. Even if they smuggled copies of SMS's programs and poured over them, redlining and rewriting, such “intentional dissimilarity” is permissible.

What I particularly like is Judge Young’s refusal to be swayed by the all-too-common white hat versus black hat arguments founding litigation. The opinion is a gem and should be read in its entirety.