Monday, March 03, 2008

Fold Your Cards and Go Home

There have been a number of infringement suits over time involving playing cards, Faessler v. U.S. Playing Card Co., 2007 WL 490171 (S.D. Ohio 2007) (playing cards) ; Personal Publications, Inc. v. Sagittarius Broadcasting Corp., 1996 WL 734902 (S.D. N.Y. 1996) (“Fantasy Cards,” an adult game consisting of 18 cards with sexual fantasies or scenarios written on them); H B Chaffee Mfg Co v. Selchow, 131 F. 543 (C.C.S.D. N.Y. 1904), aff'd, 135 F. 1021 (2d Cir. 1905); Richardson v. Miller, 20 F. Cas. 722, No. 11791 (C.C.D. Mass. 1877). See also the very old patent claim in England, Darcy v. Allen, 77 Eng. Rep. 1260 (K.B. 1602) (patent for the manufacture, importation, and sale of playing cards attacked).

A recent one Ristuccia v. Super Duper, Inc., 2008 WL 53800 (S.D. Ga. February 27, 2008)(Moore, Chief Judge) involved an unusual type of card but a not so unusual claim with respect to the rights asserted. The cards were designed to assist children in overcoming speech impediments. Defendant, which put out a competing product, was undercutting plaintiff by 75%. A hint of the nature of plaintiff’s claim comes from the name of her product, the “Entire World of R 21 Deck Playing Card System.” As described by the court, there were

420 individual cards. Each card shows a word and an original artistic representation of the word. The 420 cards are arranged into 21 decks. Each deck represents one of the 21 R allophones.FN1 Each deck contains 20 examples of the subject R allophone, all of which are organized in a “phonetically consistent” manner. The EWR decks sell for more than $200.
FN1. An “allophone” is defined as “one of two or more variants of the same phoneme.” Merriam-Webster's Collegiate Dictionary 31 (10th ed.1998). A “phoneme,” in turn, is defined as “any of the abstract units of the phonetic system of a language that correspond to a set of similar speech sounds (as the velar \k\ of cool and the palatal \k\ of keel ) which are perceived to be a single distinctive sound in the language.” Id. at 873.

Defendant was hardly a slouch:

Defendant Super Duper, Inc. is an educational materials company started in 1986 by Sharon Webber, a speech-language pathologist, and her husband, Thomas Webber. Defendant has created at least 925 proprietary items, including reproducible workbooks, card decks, games, motivators, rewards, tests, equipment, and supplies. Defendant published its first “reproducible R” articulation workbook, the Say and Do R Worksheets, in 1988. Among other things, this workbook contained reproducible R picture-word combinations. FN2 In 1992, Defendant published its first full-color R articulation card deck, the Webber R Articulation Cards. These cards have illustrated pictures corresponding to the R words and are arranged by the positioning of the R in each word. In November, 2000, Defendant published its Awesome Artic R Worksheets (Awesome R Book), which contained reproducible picture cards, activity sheets, and word lists arranged by prevocalic and vocalic R sounds.

In July 2004, Defendant published the Webber Vocalic R Photo Cards (WVR), which is a set of five decks: a pre-vocalic R deck and four vocalic R decks.FN3 Each deck contains twenty-eight pairs of words arranged according to the position of the R sound. The WVR system has 140 pairs of R photo cards. The set originally sold for $39.95, and Defendant later increased the price to $49.95.

FN3. A “prevocalic R” word is one in which the R appears before the vowel (e.g.“rain”). A “vocalic R” word is one in which the R is associated with or connected to the vowel. The particular sound-for example, the “AR” sound, can occur in the initial, medial or terminal position of a word (e.g. “artist,” “alarm,” and “star,” respectively).

Plaintiff originally asserted infringement based on similarities in the cards themselves, but then changed her claim to this compilation claim: “(1) copying her selection of R allophones and/or words and images, and (2) arranging its Vocalic R Cards decks in a phonetically consistent manner.” The second claim is a dead-loser, since it claims rights in a system, a system moreover that dictates the order. As the court rightly held:

A plaintiff cannot claim that she has a protectable right to the concept of using particular sounds, or allophones.. This is particularly true where Plaintiff explains that the twenty-one allophones she used represent all of the possible R allophones. Even if Plaintiff had “discovered” the twenty-one allophones, she could not possibly obtain a copyright that would prevent their use by others.

(There was also an arrangement claim that was dismissed for related reasons).

The first claim is, as the court wrote, “somewhat difficult to decipher, it appears that Plaintiff takes issue not only with the selection of sounds (the allophones) but also with the words and/or images selected to illustrate them.” Defendant used fewer than 18% of the words used in plaintiff's set and used 65% of words that did not appear in plaintiff’s set. There was, according, no substantial similarity, resulting in summary judgment for defendant.


Bruce Boyden said...

Correction: the cite is 2008 WL 533800.

Aren't the 65 new words the defendant used technically irrelevant to the substantial similarity analysis? Hand's famous rule is that the defendant cannot show a lack of substantial similarity by showing how much she didn't copy. But this court and, I think, most people, seem to think that it does matter.

Jim said...

For clarification, the plaintiff claimed that 83 out of defendant's 140 cards (56%) used the same words in the same arrangement. Of the four vocalic r decks [ar; or; er; and air, ear & ire] 64% of the defendants cards used the same words (74 out of 112 words) as the plaintiff original set.

The court's mathematical perspective--quoting 18% of the plaintiff's 420 words--is misleading. Simply put: The majority (56%) of the defendant's product is substantially the same as the plaintiff's original product.

Anonymous said...

I am a speech-language pathologist who happened to find this blog while looking for information about the plaintiff's "21 types of /r/" system. Interesting stuff!

I haven't done the research on the words available, but one thing I have noticed is that when you are looking for a set of words that are appropriate for use on articulation cards, you are fairly limited in the words you can choose. The words must be something that can be easily represented with a picture for clients who can't read, so you are essentially limited to a set of concrete nouns. You also tend to prefer words that have certain characteristics, such as consonant-vowel-consonant (CVC) combinations. When you take into account all of the phonological constraints plus all of the semantic constraints, then rule out words that may be inappropriate for use with children because they may not be readily understood or even be inappropriate (I've removed the flip-flop or "thong" or from my "th" deck because it's too distracting), the available pool of words isn't all that great. Even if there were greater than 50% overlap in some areas, that may have been difficult to avoid! Different companies who produce these cards frequently have substantial overlap. Looking for /s/ words? Chances are you'll use "sun" and "soap." Looking for /r/ words? Most likely "rat," "rug," and "rose" are on the list. Can you really copyright that?