Category Archives: Scenes a Faire

CAD software user interface copyrightable as a compilation of public domain elements

Filed under Noncopyrightable Material, Originality, Scenes a Faire, Software, Unfair Competition

Real View, LLC v. 20-20 Technologies, Inc., 2010 WL 455459 (D. Mass. 2010)

Real View and 20-20 Technologies sold competing CAD software that enabled consumers to model kitchens. 20-20 sent Real View a cease-and-desist letter, which Real View responded to by filing a complaint seeking a declaratory judgment that it has not infringed 20-20′s copyrights. 20-20 filed counterclaims for copyright infringement, trade dress infringement, unfair competition, intentional interference with advantageous relations, and violations of Massachusetts General Laws Chapter 93A.

The District Court of Massachusetts (Saris, J.)  held a preliminary hearing to determine whether 20-20 Design contained expression that merited copyright protection, and if so, which parts. The Court’s decision is interesting for its attempt to synthesize the “abstraction, filtration, comparison” test, adopted by the Second Circuit in Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992) (plaintiff claiming non-literal infringement), and the First Circuit’s decision in Lotus Dev. Corp. v. Borland Int’l, Inc., 49 F.3d 807, 820 (1st Cir.1995) (plaintiff claiming literal infringement) that criticized the “abstraction, filtration, comparison” test for obscuring the fundamental question of whether a work merited copyright protection at all.
20-20 presented the court with a list of fifty-four elements that it contended merited copyright protection. The Court found that this allowed it to skip directly to the filtration portion of the “abstraction, filtration, comparison” analysis:

Since 20-20 has offered a list of specifically protected elements, this Court need not engage in the abstraction process described in Altai and eschewed in Lotus. See MiTek Holdings v. Arce Eng’g Co., 89 F.3d 1548, 1555 (11th Cir.1996) (“[I]f the copyright holder presents the court with a list of features that it believes to be protectable …, the court need not abstract further such features.”); ILOG, Inc. v. Bell Logic, 181 F.Supp.2d 3, 11 (D.Mass.2002) (declining to “abstract” and proceeding to “filter” when parties identified elements of a computer program that were allegedly copied). Nevertheless, sitting in a Lotus position, the Court must read Altai through the lens of Lotus and thus filter out elements based on § 102(b) before filtering on the basis of merger, scenes a faire, or public domain.


The Court found that many of the elements of the program design did not merit copyright protection when viewed in isolation. The Court however found that a compilation of the individual components, as viewed on the screen display, was protectible. The Court also found that a particular dialog box that enabled users to specify characteristics of kitchen items placed into a design was copyrightable as a compilation of factual information (based on unique selection and arrangement).

Individual components that were found to be in the public domain when not evaluated as part of a compilation

  • The sequence of sub-windows on the left side of the screen: information box, edit box, hierarchical catalog box, drag and drop listing, and search box.
  • The items in various dialog boxes.
  • “Save as Image” function.
  • A row of command categories on the top of the screen display (File, Edit, View, Place, Project, Design, Notes, Dimensions, Render, Preferences, Window, and Help).
  • The ability to add notes via a dialog box.
  • Three methods used to add a wall. One of the methods was consisted of using a menu command function; a second, pressing a button on a toolbar.
  • An “idiosyncratic” sequence of mouse clicks through which a user could draw walls (regardless of the novelty of the sequence).
  • The ability to terminate a wall sequence through a single left mouse click behind the most recent wall drawn.
  • An edit box and default room configuration users can use to create walls.
  • A submenu that allows a user to move, rotate, extrude, and delete a wall.
  • A dialog box that allows users to modify the appearance of a wall or a placement zone.
  • A drop and drag method of placing items such as cabinets; a method through which a user can select an item from a list and click “place”; and a method through which a user can input coordinates.
  • Two means through which a user could resize windows and doors Options for editing countertops, e.g, “Add Bevel,” “Notch,” and “Rotate.”

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1st Cir. affirms prelim injunction in frog infringement suit: “[C]ourt should not lose sight of the forest for the trees”

Filed under Natural Phenomena, Scenes a Faire

The last couple of days have been busy in the world of copyright.  The Stanford Center for Internet and Society won its First Amendment challenge of the URAA’s restoration of copyrights in public domain works; the USTR released a summary of its ACTA negotiations; Ben Sheffner reported on Howard Berman’s (D-CA-28) frustrations at the lack of an IP Czar appointment; and the Library of Congress released a report on the use of unpublished sound recordings in libraries.  These stories all merit a closer look — and I’d like to get back to them later this week — but today let’s talk about frogs.  Everyone likes frogs.The Coquico

Coquico, Inc. v. Rodriguez-Miranda et al, 2009 WL 903954 (1st Cir. 2009) (Puerto Rico)

Judge  Bruce M. Selya (Torruella/Leval joined) issued an order today in an infringement action that’s pretty darn funny, at least as far as appellate decisions go.  The  introduction of the facts speaks for itself:

A famous fairy tale, of ancient vintage, tells of an ugly frog who, when befriended by a beautiful damsel, turns into a handsome prince, marries his rescuer, and (presumably) lives happily ever after. The coquí is a tree frog indigenous to Puerto Rico. Plaintiff-appellee Coquico, Inc. has not yet managed to turn the coquí into an imperial presence. It has, however, fashioned a popular stuffed-animal rendering of the coquí and, thus, turned the frog into dollars.

Coquico secured a copyright on its stuffed animal to protect this amphibian revenue source. When the defendants, [Defendants] began selling a competing coquí, Coquico sued for, among other things, copyright infringement. The district court preliminarily enjoined the defendants from infringing Coquico’s copyright.  [citation omitted]

Scènes à faire and merger

The Defendants appealed the preliminary injunction arguing that Coquico was unlikely to succeed on its claim because the district court failed to restrict its infringement analysis to the elements of the original work that warrant exclusive rights.

A court normally should commence its evaluation of this type of defense by dissecting the copyrighted work and separating its original expressive elements from its unprotected content. In performing this dissection, the court should not lose sight of the forest for the trees; that is, it should take pains not to focus too intently on particular unprotected elements at the expense of a work’s overall protected expression. [citation omitted, emphasis added]

* * * * *

There is no evidence in the record demonstrating that Común mirrors any particular coquí in nature. What evidence there is about the coquí in nature suggests the contrary: the coquí común exists in myriad shades of beige, brown, and tan; coquíes can and do strike a wide variety of poses; coquíes do not have embedded flags; a stuffed-animal rendering of a coquí need not have Común’s precise dimensions (which depart dramatically from those of coquíes in nature); and, finally, the actual coquí has no stitching (and, relatedly, many different stitching patterns can be used to construct stuffed animals). To cinch the matter, the record is replete with stuffed-animal depictions of coquíes that bear little resemblance to Común.

No substantial similarity

Secondly, the defendants argued that  the shared qualities of the two plush toys didn’t rise to the level of substantial similarity because the work only merited a thin copyright.

[T]he defendants contend that Coquico’s copyright is not very robust because Común purports to mimic a wild animal (and, thus, an object in the public domain). This contention represents a triumph of hope over reason. The simple truth is that even a realistic reproduction of a natural phenomenon may enjoy copyright protection.

The determining factors are whether the work possesses original expressive elements and whether the alleged infringer has copied those elements, as opposed to gleaning them from the phenomenon in nature. The elements of original expression that we have catalogued above show beyond hope of contradiction that this is a case in which art imitates nature to a degree-but without forfeiting copyright protection. [citation omitted]

The First Circuit affirmed, finding that the district court was warranted in deciding that Coquico had a high probability of prevailing on the substantial similarity analysis, and the infringement action.

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