Sixth Circuit Limits Extent of Copyrightability of Uncopyrightable Forms To Selection and Organization

In Ross, Brovins & Oehmke, P.C. d/b/a LawMode v. Lexis Nexis Group, 2006 Fed App. 0358P (6th Cir. 2006), the Sixth Circuit Court of Appeals affirmed the lower court’s dismissal of copyright claims LawMode made against its former business partner, Lexis Nexis Group. However, the Sixth Circuit reversed the lower court’s dismissal of LawMode’s breach of contract claims and remanded for further proceedings.

LawMode created a package of 576 individualMichiganlegal form templates, which were marketed and sold under contract by Lexis Nexis for five years. After terminating the contract, Lexis Nexis offered its own package of 406 individualMichiganlegal form templates. LawMode filed a seven-count complaint, all but two of which it voluntarily dismissed.  Remaining for the consideration of the court was a copyright claim and a breach of contract claim.

The lower court dismissed the copyright claim, holding that, while LawMode’s selection of forms was copyrightable, the selection was not infringed, and that organization of the forms, look of the screen, and interrelationships of the form variables were not copyrightable.

The Sixth Circuit affirmed, holding that neither of the two copyrightable elements of LawMode’s product – the selection and categorization – were copied by Lexis Nexis. LawMode’s selection of 576 from a universe of over 700 forms is copyrightable even if the underlying forms are not themselves copyrightable. However, the court held that because Lexis Nexis only included 61% (350 of 576) of the same forms as LawMode’s product, this was not substantial verbatim copying and thus not copying under the strict standard set by the Supreme Court in Fiest Publications v. Rural Telephone Service Company. 499 U.S. 340 (indicating that facts can be used in a competing work so long as the competing work does not have the same selection).

Similarly, the court held that the form categories used in the two products were not similar enough to constitute infringement on Lexis Nexis’s part.  Where they are similar, the court noted, was in headings and classifications that had previously existed on the state ofMichiganwebsite organizing its versions of the forms. Lexis Nexis did not copy any of the non-obvious and non-public use categories that LawMode had created.

Next, the court held that the appearance of dialog boxes used to input information on the forms were not sufficiently original to be copyrightable. The court noted that the reason both product’s dialog boxes look similar was because both relied on the same default setting in the commercial form-creating software use by both companies. Choosing the default setting was too trivial to be original, according to the court.

Likewise, the court held that the interrelation between the variables in the forms was not protectable by copyright.  The court held that these relationships were non-creative because the relationships were compelled by the express terms of the underlying state-created forms. For example, permitting the form user to choose either the district or circuit court conveys no information beyond the pre-existing requirement that the form be filed in only one court.  Since the interrelationships conveyed no information beyond that on the face of the form, the interrelationships themselves are not eligible for copyright.

While the Fourth Circuit affirmed the dismissal of LawMode’s copyright claims, it reversed the lower court’s dismissal of the contract claims under rule 12(c).  The Fourth Circuit found that, assuming LawModes’s factual allegations were true (as rule 12(c) requires), LawMode had stated a claim for breach of contract.  Therefore, the court remanded the case for further consideration of the breach of contract claim.

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