Over the course of my legal career, I have been asked whether ideas are protected under copyright law. The answer is no. Section 102(b) of the Copyright Act codifies the prohibition on copyright ideas: “In no case does copyright protection for an original idea work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, or embodied in such a work.”
Courts have gotten involved in addressing disputes involving alleged copyright infringement of ideas from early on in our jurisprudence. See e.g., the 1879 U.S. Supreme Court case of Baker v. Selden. The most recent case in the “idea” area of copyright law is Smith v. Roger Goodell and the NFL, E. Dist. La., case no. 14-1010, where the court granted the Defendants’ Motion to Dismiss on 12(b)(6) grounds. The opinion is instructive for its discussion as to why ideas are not protectable under copyright law and also delves into the complex area of antitrust law because of the Plaintiff’s attempt to invoke an antitrust claim at the 12th hour. The opinion also provides insight into how not to draft a complaint.
The Smith Plaintiff sought damages in the amount of over $10 million for alleged infringement of her registered copyright of a non-dramatic work. The work was entitled “Fantasy Football Parade Extravaganza” and consisted of a twenty (20) page booklet describing what the Plaintiff claimed represented unique strategies for marketing the New Orleans Saints football team.
In April, 2005, the Plaintiff sent several unsolicited proposals to executives and owners to the Saints’ organization describing various strategies for increasing game attendance and gaining a corporate sponsor for the Louisiana Superdome, both for the goal of leading the team to an NFL championship. The Plaintiff subsequently obtained copyright registration of the work on January 1, 2006. Copyright registration with the U.S. Copyright Office is a prerequisite for commencing a lawsuit in federal court concerning copyright infringement. Click here to link to a previous blog on copyright registration.
In May 2014, the Plaintiff filed a complaint alleging that the Defendants engaged in unfair trade practices and unfair competition by using her unique literary body of works as their own, thus causing irreparable damages. The NFL Commissioner and the NFL were a named as Defendants because, according to the Plaintiff, they came into possession of her ideas once they were submitted to Saints’ executives. Slip opinion at 12. She further claimed that the NFL and the New Orleans Saints are joint venture partners and for all practical purposes constituted a single entity according to the decision in American Needle, Inc. v. New Orleans Saints, 496 F. Supp. 2d 941, 943 (2007). Hence the Defendants were “valid” defendants according to the Plaintiff.
In their motion to dismiss, the Defendants argued that the Plaintiff’s ideas, contexts, and unique strategic characteristics written in her booklet are not protected by copyright law. Copyright protection extends to the actual specific expression of the facts and ideas contained within the booklet, a tangible medium of expression, but not to the underlying facts or ideas themselves. Slip opinion at 3.
Additionally, the Defendants argued that the Plaintiff did not plead any factual allegations as to how the booklet itself was infringed by the NFL or the Commissioner. Generally copyright infringement involves copying, distributing, and/or reproducing the copyrighted work without the authorization of the copyright owner. The Plaintiff’s complaint did not name an infringing work by the NFL or the Commissioner or even allege that the two Defendants actually had access or knowledge of the booklet. Slip opinion at 9.
As for the non-copyright infringement claims, the Defendants argued that the Copyright Act preempts the Plaintiff’s state law claims which the Defendants logically characterized as a claim under Louisiana’s Unfair Trade Practices Act (LUTPA) although the Complaint never actually referenced the statute. Under the preemption doctrine as it relates to federal copyright law, state claims may be dismissed from consideration providing certain conditions are met. Accordingly, the case will then continue with the federal copyright infringement claim, or if the copyright claim is dismissed, then state law claims preempted by federal copyright law will generally also be dismissed. Slip opinion at 4-5.
The Plaintiff at the last minute also attempted to state a claim for relief under one of the U.S. antitrust statutes.
Motions to dismiss are often filed by Defendants but more often than not are not granted. This is because on a motion to dismiss, asserted claims are liberally construed in favor of the plaintiff and the pled facts are taken as true. Slip opinion at 10 citing Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993). Generally, the complaint must have enough factual matter to raise a reasonable expectation that discovery will reveal evidence as to each element of the asserted claims. Slip opinion citing Lorman v. U.S. Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009).
The Smith Court granted the Defendants’ motion to dismiss for the following 4 reasons:
1. Copyright law does not protect ideas but rather protects the expression of ideas. In addition, the accuser must identify the accused work within the complaint so that the copyrighted work can be compared with the alleged infringing work. Otherwise, a pleading does not plausibly establish that infringement may have occurred. Slip opinion at 11 citing numerous decisions by the Fifth Circuit Court of Appeals. The Plaintiff did not identify an infringed work nor allege specific activities infringing such as copying and distribution of the copyrighted booklet. In addition, she did not demonstrate that any of the allegedly copied material was in fact subject to copyright protection under the Copyright Act. Because her copyright claim appears to be based entirely on the Defendants’ alleged use of the booklet’s ideas and strategies, the district court opened that she does not have a claim for copyright infringement. Slip opinion at 12.
2. The Plaintiff had not pleaded any facts permitting a reasonable inference that Defendants proceeded to appropriate the unsolicited ideas she submitted to the Saints. The pleaded facts were based on mere speculation. Slip opinion at 12. It is noted that a Saints’ executive had sent the Plaintiff a letter stating that both the Saints and the NFL had procedures for the submission of unsolicited proposals. Slip opinion at 2.
The commentator notes that the opinion does not reflect on these procedures, but one may reasonably presume that submitters are required to complete forms as part of the submission package. The forms most likely state that the unsolicited submission does not establish any legal relationship between the team/NFL and the submitter. Such forms would be intended to protect the team and the NFL from lawsuits stemming from unsolicited proposals. It is not clear whether the Plaintiff ever re-submitted her booklet in accordance with the procedures. For an interesting case that discusses the problems NFL teams face with unsolicited proposals see Grubb v. NFL Properties, Inc., et al., 901 F. Supp. 36, U.S. Dist. Ct. Mass., Oct. 23 1995 (granting summary judgment to the defendants. Plaintiff had alleged that the Patriots had used his copyrighted logo which he submitted for their consideration upon learning that the team was going to change its logo.). Most companies and organizations do not want to receive unsolicited information, ideas, proposals, etc.
3. Regarding the preemption argument by the Defendants, the Court did not address this issue presumably because the Complaint did not allege a violation of a specific state statute (in this case the Louisiana Unfair Trade Practices Act – LUTPA). The Complaint simply alleged that: The Defendants continues [sic] to infringe on FFPE’s copyrights by continuing to engaged [sic] unfair trade practices, and unfair competition by use [the booklet’s] unique literary body of works as their own, thus causing irreparable damages to its owner. Slip opinion at 2013.
The Defendants had logically presumed that with this wording, the Plaintiff was bringing a claim under the LUTPA. The Complaint was devoid of a reference to any particular statute, whether state or federal. The LUTPA requires the plaintiff to prove “some element of fraud, misrepresentation, deception, or other unethical conduct.” The Plaintiff failed to plead any facts establishing that the NFL and the Commissioner had any knowledge of the Plaintiff’s copyrighted booklet or that they violated her rights under the LUTPA unethically or fraudulently. As we shall see below, the Plaintiff had apparently intended this wording to invoke a claim for relief under antitrust law. Slip opinion at 13.
4. In her opposition to the Defendants’ motion to dismiss (and not the Complaint), the Plaintiff sought relief under the Federal Trade Commission Act. This statement attempted to “carry” the Plaintiff’s claim into the area of antitrust law. The Court noted that her allegations did not reveal an antitrust injury and that she provided no facts or arguments from which the Court could determine whether she had a right to relief above a speculative level. Slip opinion at 13-14.
It is also puzzling as to why the Plaintiff attempted to bring in an antitrust claim. It may be that this “late-in-the-game” claim was brought to try and overcome dismissal of the unfair trade practices claim on preemption grounds. The Plaintiff’s antitrust allegation may have stemmed from some general knowledge by the the Plaintiff about the American Needle, Inc. v. New Orleans Saints, 496 F. Supp. 2d 941, 943 (2007) case which she had actually invoked to justify bringing in the NFL and the NFL commissioner as defendants. The American Needle case, on appeal from the Seventh Circuit, was eventually heard by the U.S. Supreme Court in American Needle, Inc. v. National Football League, et. al., 130 S. Ct. 2201 (2010).
This antitrust case originated when American Needle, Inc. challenged the NFL’s decision to award an exclusive apparel license to Reebok for all NFL teams and alleged that the licensing agreement violated antitrust laws. The NFL had argued that it was a single entity acting on behalf of the 32 NFL teams and there incapable of conspiring to restrain trade under Section 1 of the Sherman Act. The Supreme Court rejected the NFL’s defense but did find that the relation between the teams and the NFL was not a per se violation of the Sherman Act. The evaluation of the alleged antitrust violations stemming from the exclusive licensing agreement between the NFL and Reebok was the subject of a “Rule of Reason” analysis for violations of Section 1 of the Act. The case was remanded for consideration of the antitrust claims under a Rule of Reason analysis to the N. Dist. of Illinois where the style of case is American Needle, Inc. v. New Orleans Saints, et al. The district court refused to grant the NFL’s motion for summary judgment on April 4, 2014 and the case continues.
The Plaintiff’s opposition to the Defendants’ motion to dismiss, however, did not reference the Sherman Antitrust Act nor provide any updated information on the American Needle line of cases but instead invoked that Federal Trade Commission Act (Clayton Act). Slip opinion at 13. It is not clear if this reference to both Acts is a typo because the Federal Trade Commission Act is a separate and distinct act from the Clayton Act. That is, the Clayton Act is not another name for the Federal Trade Commission Act. The Clayton Act was passed in 1914 to give more enforcement teeth to the older Sherman Antitrust Act. It is intended to regulate general practices detrimental to fair competition including price discrimination, ting agreements, and exclusive dealing contracts. It also covers issues related to decreased competition resulting from acquisitions and mergers. Based on the purpose behind the three (3) acts and the wording of her Complaint of “unfair trade practices and unfair competition,” it would appear that the Plaintiff meant to invoke the Federal Trade Commission Act. See the link for specific information on the three Acts.
The Smith Complaint made no reference to any actions by the Defendants that could even be loosely construed as having any semblance to illegal restraint of trade activities or activities related to curbing fair competition. In addition, the Plaintiff made no allegations that she was a member of the relevant market and therefore had proper standing to bring an antitrust claim. Slip opinion at 13. The court accordingly also dismissed the supposed antitrust claim.
In conclusion, this case is a reminder that ideas themselves are generally not subject to copyright protection under the Copyright Act. By way of example, books involving a woman detective such in Agatha Christy’s Miss Marple detective novels or Sue Grafton’s Kinsey Malhone novels are protected by copyright laws, but the idea of a woman detective novel is not protectable. Anyone is free to study copyrighted work, learn the underlying idea, and then use the idea in his/her own work. What copyright law does protect is the unauthorized copying, usage, or paraphrasing of the copyrighted work itself. Determining whether a work has been infringed by a different but allegedly similar work (e.g., a song with very similar words to a previous work) is not an easy exercise. As Judge Learned Hand stated in Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487 (2d Cir.1960), “Obviously no principle can be stated as to when an imitator has gone beyond copying an ‘idea’ and has borrowed its ‘expression.’ ”
As a practical matter, the Complaint in this case was clearly deficient in meeting even basic pleading requirements. Although courts are required to accept all “well-pleaded facts” as true, a court is not required to accept legal conclusions as true. Slip opinion at 10 citing Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). Proper pleading may have allowed continuation of the lawsuit providing the claims were not thrown out on copyright law preemption grounds. Furthermore, plaintiffs are often given the chance to amend their complaints. In this case, the district court found that amendment of the Complaint would be an exercise in futility and therefore dismissed the lawsuit in its entirety.
THE FOREGOING IS NOT LEGAL ADVICE, NOR SHOULD YOU CONSIDER IT AS SUCH. IT IS FOR INFORMATIONAL PURPOSES ONLY. WHEN CONSIDERING AN ACTION WHICH HAS LEGAL CONSEQUENCES, YOU SHOULD CONSULT WITH AN ATTORNEY OF YOUR CHOOSING.
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