Case 6:15-cv-06646-FPG-JWF Document 76 Filed 12/17/18 Page 1 of 22
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF NEW YORK
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`LOGICAL OPERATIONS INC.,
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`30 BIRD MEDIA, LLC, et al.,
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` Case # 15-CV-6646-FPG
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` DECISION AND ORDER
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`Plaintiff,
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`Defendants.
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`INTRODUCTION
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`Logical Operations Inc. (“Logical”) brings suit for copyright infringement against 30 Bird
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`Media, LLC (“30 Bird”) and three of its officers—Adam A. Wilcox, Benham Tchoubineh, and
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`Alireza Choubineh (the CEO, President, and CFO of 30 Bird, respectively). Logical and 30 Bird
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`are in the business of developing and publishing instructional materials. At issue in this case are
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`the parties’ competing lines of instructional manuals for certain computer programs. Logical
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`alleges that Defendants designed their materials to mimic Logical’s series and, by doing so,
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`infringed on Logical’s copyrights. ECF No. 59. Presently before the Court is Defendants’ motion
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`for summary judgment. ECF No. 72. Plaintiff opposes the motion. ECF No. 74. For the reasons
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`that follow, Defendants’ motion is GRANTED IN PART, in that summary judgment is granted on
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`Logical’s claim of copyright infringement but denied without prejudice on Defendants’
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`counterclaim for attorney’s fees.1
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`1 Defendants requested a hearing on the motion, ECF No. 75-9, but the Court concludes that a hearing is
`unnecessary.
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`1
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`LEGAL STANDARD
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`Summary judgment is appropriate when the record shows that there is “no genuine dispute
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`as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
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`56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Disputes concerning material
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`facts are genuine where the evidence is such that a reasonable jury could return a verdict for the
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`non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding
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`whether genuine issues of material fact exist, the court construes all facts in the light most
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`favorable to the non-moving party and draws all reasonable inferences in the non-moving party’s
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`favor. See Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). However, the non-
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`moving party “may not rely on conclusory allegations or unsubstantiated speculation.” F.D.I.C.
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`v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010) (quotation omitted).
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`BACKGROUND
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`Consistent with the applicable standard of review, the following narrative consists of the
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`undisputed facts and the disputed facts taken in the light most favorable to Logical. See Smolen v.
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`Wilkinson, No. 11-CV-6001, 2013 WL 5417099, at *1 (W.D.N.Y. Sept. 26, 2013).
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`Logical develops, markets, and distributes training courseware for, among other things,
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`various computer programs. At issue in this case are the “Axzo ILT Series line of . . . instructional
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`manuals” for Microsoft Excel, Outlook, and Word. ECF No. 72-28 ¶ 28. Logical obtained the
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`copyrights to these manuals when it acquired Axzo Press, the original publisher, in 2014.2 Id. ¶
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`29; see also ECF No. 74 at 9. The manuals in the Axzo ILT Series are intended to be used “for
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`in-class instruction by an instructor to a student” and are sold in instructor and student versions.
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`2 The entire genealogy of the Axzo ILT Series is more complex, but those details do not need to be recounted
`for present purposes. See ECF No. 74 at 6-9 (discussing history of Axzo ILT Series).
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`2
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`ECF No. 72-28 ¶ 33. The manuals are intended to prepare students for “specially designed
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`Microsoft certification exams.” Id.
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`Benham Tchoubineh founded 30 Bird in March 2014. Initially, 30 Bird did not publish
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`instructional materials for the Microsoft suite of products. ECF No. 74-2 at 23. But, as Logical
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`describes the sequence of events, 30 Bird undertook substantial efforts to develop a competing line
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`of Microsoft Office coursework beginning in January 2015. At that time, 30 Bird hired Adam
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`Wilcox as CEO and made him part owner of the company. ECF No. 72-28 ¶ 4. Wilcox had
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`previously worked at Axzo Press before its acquisition by Logical, and he had been a designer on
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`the Axzo ILT Series. Over the next months, 30 Bird went on to hire a number of former Logical
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`and Axzo Press employees. See ECF No. 74 at 9-10. The crux of Logical’s claim is that 30 Bird’s
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`designers had access to and used the Axzo ILT Series as the model for 30 Bird’s series,
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`substantially replicating its design, look, and feel.
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`In July 2015, Logical learned that 30 Bird was creating competing manuals, and it brought
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`suit in October of that year. Logical brings one claim of copyright infringement against
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`Defendants. ECF No. 59 at 9-11. Defendants have raised a counterclaim requesting attorney’s
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`fees under 17 U.S.C. § 505.
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`DISCUSSION
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`Defendants seek judgment as a matter of law on both Logical’s claim and their
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`counterclaim for attorney’s fees. Because Defendants develop no argument as to why they are
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`entitled to attorney’s fees under 17 U.S.C. § 505, the Court denies their motion on that issue
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`without prejudice. See Baker v. Urban Outfitters, Inc., 431 F. Supp. 2d 351, 357 (S.D.N.Y. 2006)
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`(stating that “[a]n award of attorney’s fees and costs is not automatic” under § 505 and listing
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`factors that a court should consider).
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`Turning to the claim for copyright infringement, Defendants argue, among other things,
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`that summary judgment is appropriate because Logical cannot demonstrate that the 30 Bird
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`manuals are substantially similar to the Axzo ILT series. More specifically, Defendants contend
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`that the similarities between the competing series largely relate to unprotected elements.
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`Defendants assert that once those unprotected elements are filtered out, there is no “room to find
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`substantial similarity.” ECF No. 72-29 at 11.
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`While not conceding that many of the similarities between 30 Bird’s and Logical’s manuals
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`relate to unprotected elements, Logical focuses its opposition more on the argument that the Court
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`should compare the works based on their total concept and feel, as opposed to dissecting the works
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`into their component parts. Logical argues that under that standard, Defendants are not entitled to
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`summary judgment.
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`In analyzing this dispositive issue, the Court begins by setting forth the relevant law. It
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`then proceeds to analyze the elements of Logical’s and 30 Bird’s works that purportedly give rise
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`to a claim for copyright infringement. Finally, the Court addresses the question of total concept
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`and feel, concluding that Defendants are entitled to summary judgment.
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`I. Relevant Law
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`To prove a claim of copyright infringement, a plaintiff must establish three elements: “1)
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`that his work is protected by a valid copyright, 2) that the defendant copied his work, and 3) that
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`the copying was wrongful.” Zalewski v. Cicero Builder Dev., Inc., 754 F.3d 95, 100 (2d Cir. 2014).
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`The third element—wrongful copying—is at issue here.
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`a. Wrongful Copying
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`Wrongful copying exists “where two works are ‘substantially similar.’” Laspata DeCaro
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`Studio Corp. v. Rimowa GmbH, No. 16 Civ. 934, 2018 WL 3059650, at *3 (S.D.N.Y. June 20,
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`2018). The Second Circuit has articulated three standards that bear on the question of substantial
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`similarity. “In most cases, the test for substantial similarity is the ‘ordinary observer test,’ which
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`queries whether an average lay observer would recognize the alleged copy as having been
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`appropriated from the copyrighted work.” Hamil Am. Inc. v. GFI, 193 F.3d 92, 100 (2d Cir. 1999);
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`see also Zalewski, 754 F.3d at 102 (stating that the question is whether “the ordinary observer,
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`unless he set out to detect the disparities, would be disposed to overlook them, and regard their
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`aesthetic appeal as the same”). “Although dissimilarity between some aspects of the works will
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`not automatically relieve the infringer of liability, numerous differences tend to undercut
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`substantial similarity.” Disney Enters., Inc. v. Sarelli, 322 F. Supp. 3d 413, 442 (S.D.N.Y. 2018)
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`(internal citations and quotation marks omitted); see Williams v. Crichton, 84 F.3d 581, 588 (2d
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`Cir. 1996) (stating that no liability attaches “when the similarities between the protected elements
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`of plaintiff’s work and the allegedly infringing work are of ‘small import quantitatively or
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`qualitatively’”).
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`The second standard is the “more discerning observer” test, which is used when a work is
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`not “wholly original” and “incorporates elements from the public domain.” Boisson v. Banian,
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`Ltd, 273 F.3d 262, 272 (2d Cir. 2001); see also Zalewski, 754 F.3d at 102. That test requires
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`“substantial similarity between those elements, and only those elements, that provide
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`copyrightability to the allegedly infringed work.” Belair v. MGA Ent., Inc., 503 F. App’x 65, 66
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`(2d Cir. 2012) (summary order) (internal quotation marks and brackets omitted). That is, “where
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`the allegedly infringed work contains both protectible and unprotectible elements, the test must be
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`more discerning, excluding the unprotectible elements from consideration.” Lynx Ventures, LLC
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`v. Miller, 45 F. App’x 68, 69 (2d Cir. 2002) (summary order) (internal quotation marks omitted).
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`The third standard—known as the “total concept and feel” standard—operates to clarify
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`and limit the “more discerning observer” test. Taken to an extreme, the “more discerning
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`observer” test could be understood to require a court to “dissect the works at issue into separate
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`components and compare only the copyrightable elements.” Boisson, 273 F.3d at 272. But a
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`“piecemeal comparison” of each copyrightable element, viewed in isolation, may fail to fully
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`account for the author’s original expression. Mena v. Fox Entertainment Grp., Inc., No. 11 Civ.
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`5501, 2012 WL 4741389, at *5 (S.D.N.Y. Sept. 29, 2012). For example, a street map consists of
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`a number of unprotectible, public-domain facts—“such as street locations, landmasses, bodies of
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`water and landmarks, as well as color”—but through the creative arrangement, structure, and
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`organization of those facts, the street map may warrant protection under copyright law. Boisson,
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`273 F.3d at 272-73. Any analysis of substantial similarity must therefore account for the fact that
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`copyright infringement may result “not only through literal copying of a portion of [a work], but
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`also by parroting properties that are apparent only when numerous aesthetic decisions embodied
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`in the plaintiff’s work of art—the excerpting, modifying, and arranging of public domain
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`compositions, if any, together with the development and representation of wholly new motifs and
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`the use of texture and color, etc.—are considered in relation to one another.” Tufenkian
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`Import/Export Ventures, Inc. v. Einstein Moomjy, Inc., 338 F.3d 127, 134 (2d Cir. 2003).
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`For that reason, the Second Circuit requires courts to be “principally guided by comparing
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`the contested design’s total concept and overall feel with that of the allegedly infringed work, as
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`instructed by [their] good eyes and common sense.” Peter F. Gaito Architecture, LLC v. Simone
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`Dev. Corp., 602 F.3d 57, 66 (2d Cir. 2010) (citations and internal quotation marks omitted). A
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`court must analyze not only whether a defendant has misappropriated particular protectible
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`elements of the plaintiff’s work, but also “whether the alleged infringer has misappropriated the
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`original way in which the author has selected, coordinated, and arranged the elements of his or her
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`work.” Id. (internal quotation marks omitted); see also Tufenkian, 338 F.3d at 134 (“[T]he total-
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`concept-and-feel locution functions as a reminder that, while the infringement analysis must begin
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`by dissecting the copyrighted work into its component parts in order to clarify precisely what is
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`not original, infringement analysis is not simply a matter of ascertaining similarity between
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`components viewed in isolation.”).
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`Regardless of the standard being applied, summary judgment on a claim of copyright
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`infringement is appropriate “[i]f the similarity between the two works ‘concerns only
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`noncopyrightable elements’ or ‘no reasonable trier of fact could find the works substantially
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`similar.’” Porto v. Guirgis, 659 F. Supp. 2d 597, 610 (S.D.N.Y. 2009) (quoting Crane v. Poetic
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`Prods. Ltd., 549 F. Supp. 2d 566, 569 (S.D.N.Y. 2008)).
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`b. Protectible and Nonprotectible Elements
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`The “more discerning observer” test is premised on the observation that “even works which
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`express enough originality to be protected also contain material that is not original, and hence that
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`may be freely used by other designers.” Tufenkian, 338 F.3d at 132. A “fundamental rule of
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`copyright law is that it protects only . . . those aspects of the work that originate with the author
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`himself,” and an author obtains no monopoly over elements derived from the public domain merely
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`because he incorporates them into a creative work. Zalewski, 754 F.3d at 102 (quoting 17 U.S.C.
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`§ 102(a)). In applying the “more discerning observer” test, a court must examine the elements of
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`the plaintiff’s work and determine which elements are protectible and which are unprotectible. See
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`Tufenkian, 338 F.3d at 134 & n.8; see also Zalewski, 754 F.3d at 106-07.
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`“Numerous doctrines separate protectable expression from elements of the public domain.”
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`Zalewski, 754 F.3d at 102. The basic “raw materials” of creative works, including colors, letters,
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`and geometric forms, are unprotected. Tufenkian, 338 F.3d at 132. Similarly, “ideas, concepts,
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`principles [and] processes” are “in the common domain” and are “the inheritance of everyone.”
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`Rogers v. Koons, 960 F.2d 301, 308 (2d Cir. 1992). This is so even if the idea originates with the
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`author. Muller v. Twentieth Century Fox Film Corp., 794 F. Supp. 2d 429, 440 (S.D.N.Y. 2011)
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`(“[O]nly a copyright owner’s particular expression of his or her idea is protected, not the idea
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`itself.”); see also Tufenkian, 338 F.3d at 132 n.4.
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`Other principles include “scènes-à-faire” and the “merger” doctrine. The former “teaches
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`that elements of a work that are ‘indispensable, or at least standard, in the treatment of a given
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`topic’—like cowboys, bank robbers, and shootouts in stories of the American West—get no
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`protection.” Zalewski, 754 F.3d at 102; see, e.g., Civility Experts Worldwide v. Molly Manners,
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`LLC, 167 F. Supp. 3d 1179, 1196 (D. Colo. 2016) (finding selection of topics in instructional
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`manuals on manners and etiquette unprotected scènes-à-faire where any such manual “will likely
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`cover these sorts of topics”). The merger doctrine “instructs that some ideas can only be expressed
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`in a limited number of ways—single words or colors for example. When expression is so limited,
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`idea and expression ‘merge.’ Expressions merged with ideas cannot be protected, lest one author
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`own the idea itself.” Zalewski, 754 F.3d at 102-03; see, e.g., Nat’l Nonwovens, Inc. v. Consumer
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`Prods. Enters., Inc., 397 F. Supp. 2d 245, 256-57 (D. Mass. 2005) (unadorned step-by-step
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`instruction on boiling wool felt implicated merger doctrine, because of limited number of ways in
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`which to convey the relevant information).
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`However, as noted above, even unprotectible elements or features may receive protection
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`to the extent that the author selects, coordinates, arranges, or otherwise expresses those elements
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`in an original way. See Gaito, 602 F.3d at 66; see also Feist Publ’ns, Inc. v. Rural Tel. Serv. Co,
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`Inc., 499 U.S. 340, 349 (1991) (“[I]f the selection and arrangement [of a factual compilation] are
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`original, these elements of the work are eligible for copyright protection.”). For example, while
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`facts are unprotectible, the expression of those facts in an original way may be. The Seventh
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`Circuit provides a helpful illustration:
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`Einstein’s articles laying out the special and general theories of relativity were
`original works even though many of the core equations, such as the famous E=mc2,
`express “facts” and therefore are not copyrightable. Einstein could have explained
`relativity in any of a hundred different ways; another physicist could expound the
`same principles differently.
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`Am. Dental Ass’n v. Delta Dental Plans Ass’n, 126 F.3d 977, 979 (7th Cir. 1997); see also
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`Zalewski, 754 F.3d at 102 (“[A]ny author may draw from the history of English-speaking peoples,
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`but no one may copy from A History of the English–Speaking Peoples. Any artist may portray the
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`Spanish Civil War, but no one may paint another Guernica.”). Copyright protection can be
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`afforded to the manner in which an author selects, coordinates, or expresses unprotectible elements
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`in a work so long as it possesses “some minimal degree of creativity.” Kregos v. Associated Press,
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`937 F.2d 700, 703 (2d Cir. 1991) (quoting Feist, 499 U.S. at 345).
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`The works in dispute in this case occupy a similar place to nonfiction literature.
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`Instructional manuals, textbooks, guides, and the like present factual information or functional
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`directions. Those facts and directions, standing alone, are not copyrightable. See Churchill
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`Livingstone, Inc. v. Williams & Wilkins, a Div. of Waverly, Inc., 949 F. Supp. 1045, 1051 (S.D.N.Y.
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`1996) (comparing two science textbooks and noting that “the facts underlying the science of
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`embryology . . . are not copyrightable”); see also Lambing v. Godiva Chocolatier, 142 F.3d 434,
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`1998 WL 58050, at *1 (6th Cir. Feb. 6, 1998) (table opinion) (stating that recipes are not afforded
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`copyright protection because they are functional directions for achieving a result). Even the
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`expression, selection, and arrangement of the facts in such a work may not be protectible to the
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`extent they are driven by demands outside of the author’s originality. See, e.g., McGraw-Hill, Inc.
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`v. Worth Publishers, Inc., 335 F. Supp. 415, 420-21 (S.D.N.Y. 1971) (noting factors that restrict
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`the range of “literary options in creating an economics textbook,” including the nature of the
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`subject matter and the demands of the market); cf. Zalewski, 754 F.3d at 106 (finding that certain
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`elements of architectural designs were unprotected because they were a “function of consumer
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`expectations and standard house design generally”). That being said, an author’s “creative choices
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`in describing [factual] processes and systems, including the works’ overall arrangement and
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`structure, are subject to copyright protection.” Situation Mgmt. Sys., Inc. v. ASP Consulting LLC,
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`560 F.3d 53, 61 (1st Cir. 2009).
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`II. Comparison of Exemplar Works
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`The Court now applies the law to the present works. The Court does not possess the
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`approximately seventy books that are in dispute, but Logical has provided a copy of its book,
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`Microsoft Excel 2010, Basic, Instructor’s Edition (the “Axzo Manual”), and a copy of 30 Bird’s
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`competing volume, Microsoft Excel 2010 Level 1, Instructor Edition (the “30 Bird Manual”).
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`Given that these books contain the alleged similarities underlying Logical’s claim, and because
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`the parties do not argue otherwise, the Court treats these books as exemplars of all of the books in
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`dispute.
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`The Court uses the “more discerning observer” test, as the Axzo Manual contains both
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`protectible and unprotectible elements. See Boisson, 273 F.3d at 272. The Court first examines
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`the relevant elements of the manuals to determine which are protectible and which are
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`unprotectible. The Court does not engage in an exhaustive comparison of each and every minute
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`detail—as such an analysis would be unnecessary and counterproductive—but rather confines its
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`evaluation to the most salient elements. See Gaito, 602 F.3d at 66; Universal Athletic Sales Co. v.
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`Salkeld, 511 F.2d 904, 909 (3d Cir. 1975) (“The more the court is led into the finer points of the
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`[work], the less likely it is to stand upon the firmer, if more naive, ground of its considered
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`impressions after its own perusal.” (citing Nichols v. Universal Pictures Corp., 45 F.2d 119, 123
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`(2d Cir. 1930)). After determining which elements are protectible, the Court examines the total
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`concept and feel of the manuals.
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`a. Elements in the Parties’ Works
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`i. Overall Page Appearance, Layout, and Approach
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`Logical contends that the manuals are similar in their “overall page appearance, layout, and
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`approach.” ECF No. 59 ¶ 30(a). By this, Logical appears to assert that the internal formatting of
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`the manuals—spacing, page width, font, headers, etc.—are similar. There is authority for the
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`proposition that book designs are not in themselves copyrightable. See, e.g., F. A. Davis Co. v.
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`Wolters Kluwer Health, Inc., 413 F. Supp. 2d 507, 513-14 (E.D. Pa. 2005); 2 Patry on Copyright
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`§ 4:19 (noting that Copyright Office denies registration to the “arrangement, spacing, or
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`juxtaposition of text matter that is involved in book design”). This is because a layout “falls within
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`the realm of uncopyrightable ideas.” Registration of Claims to Copyright: Notice of Termination
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`of Proposed Rulemaking Regarding Registration of Claims to Copyright in the Graphic Elements
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`Involved in the Design of Books and Other Printed Publications, 46 Fed. Reg. 30651, 30653 (June
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`10, 1981).
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`On the other hand, there is also authority that the creative arrangement and coordination of
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`textual and graphic elements is protectible. See Eagle Access Control Sys., Inc. v. USA Power
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`Gate, Inc., No. CV 07-3789, 2008 WL 11334485, at *4 (C.D. Cal. Dec. 18, 2008) (discussing
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`layouts of manuals in addressing substantial similarity); Livingstone, 949 F. Supp. at 1054 (stating
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`that author’s selection and arrangement of illustrations in medical textbook can be creative and
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`original); see also Sadhu Singh Hamdad Trust v. Ajit Newspaper Advertising, Mktg. & Commc’ns,
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`Inc., 503 F. Supp. 2d 577, 589-90 (E.D.N.Y. 2007) (collecting cases where layout and manner of
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`presentation were considered in concluding that work was entitled to copyright protection). Thus,
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`while an abstract book design may not, standing alone, provide grounds for infringement, the
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`manner in which specific text and graphics are selected and arranged in the Axzo and 30 Bird
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`Manuals may be considered in evaluating total concept and feel.
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`ii. Content
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`Importantly, Logical does not assert that Defendants engaged in any verbatim copying of
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`its textual or graphical content. Nor does it point to any instances where Defendants reproduced
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`such content with minor or immaterial variations. Its allegations are narrower. Logical argues
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`that, like the Axzo Manual, the 30 Bird Manual: (1) uses some of the same words in its exercise
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`instructions (e.g., instructing students to “Click,” “Select,” or “Press”); (2) tells students to include
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`the word “My” in document names (e.g., instructing students to save a file as “My Workbook”);
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`and (3) uses fake companies as part of its exercises. Logical also contends that the 30 Bird Manual
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`adheres to the same bolding, italicization, and font conventions as the Axzo Manual.
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`These elements are not protectible. Single words, short phrases, and standard fonts are not
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`generally protectible subject matter. See TufAmerica, Inc. v. WB Music Corp., 67 F. Supp. 3d 590,
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`594 n.18 (S.D.N.Y. 2014); Sadhu, 503 F. Supp. 2d at 589. The idea of italicizing or bolding certain
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`important words is not copyrightable. And the idea of using fake companies in exercises is not
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`copyrightable: while a particular instructional fact pattern may be protectible, the mere notion of
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`using such hypothetical scenarios is not. Cf. Nat’l Conference of Bar Exam’rs v. Multistate Legal
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`Studies, Inc., 458 F. Supp. 2d 252, 259 (E.D. Pa. 2006) (discussing multiple-choice questions).
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`Case 6:15-cv-06646-FPG-JWF Document 76 Filed 12/17/18 Page 13 of 22
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`iii. Topics and Topic Structure
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`Logical identifies “the generalized topic structure” as one element of similarity between its
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`manuals and 30 Bird’s manuals. ECF No. 59 ¶ 30(e). If Logical is simply arguing that its selection
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`of topics is protectible, the Court is not convinced. Both manuals contain a similar selection of
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`topics, but that appears to be a function of the subject matter and the manuals’ particular purpose—
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`i.e., to prepare students for Microsoft certification exams. One would expect that a manual
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`teaching basic skills for Microsoft Excel would, necessarily or customarily, embrace certain topics,
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`making the selection of topics akin to scènes-à-faire. See Molly Manners, 167 F. Supp. 3d at 1196;
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`see also McGraw-Hill, Inc., 335 F. Supp. at 420-21. This is so particularly if the manual is geared
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`toward preparing students for a certain examination. Cf. Lyons v. Am. Coll. Of Veterinary Sports
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`Medicine & Rehab., Inc., 997 F. Supp. 2d 92, 110-11 (D. Mass. 2014) (selection of topics not
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`entitled to protection because they were dictated by policies and procedures of organization). This
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`expectation is borne out by the record: other competing manuals adopt a similar selection of topics.
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`See ECF Nos. 72-7, 72-8, 72-13.
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`The arrangement of topics is another matter, however. Granted, Defendants are on strong
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`ground when they argue that a topic structure that starts “with the simplest lessons and mov[es]
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`through to more complex lessons” is unprotectible. ECF No. 75-8 at 7. The idea of using such a
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`progression in an instructional text is certainly not protectible, and the other manuals in the record
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`establish that, in this context, such progression amounts to scènes-à-faire. See ECF Nos. 72-7, 72-
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`8, 72-13; see also Hassett v. Hasselbeck, 177 F. Supp. 3d 626, 631 (D. Mass. 2016) (order of topics
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`in recipe book—“introductory chapters providing general tips followed by chapters of recipes
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`organized by types of meals”—constituted unprotected scènes-à-faire). Indeed, structuring a
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`manual or guide in this way would seem to be attributable more to common-sense notions of
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`Case 6:15-cv-06646-FPG-JWF Document 76 Filed 12/17/18 Page 14 of 22
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`instructional design than to a creative or aesthetic decision.3 Cf. Costello, Erdlen & Co., Inc. v.
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`Winslow, King, Richards & Co., 797 F. Supp. 1054, 1063 (D. Mass. 1992) (noting that similarities
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`in the organization of job guides stemmed in part from the “natural progression” of obtaining
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`employment).
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`But the doctrine of scènes-à-faire does not extend to the creative arrangement of specific
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`topics within that overall progression. This is because the Court cannot conclude as a matter of
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`law that the Axzo Manual’s specific grouping and arrangement of topics is indispensable or
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`standard for this subject matter. The manuals in the record follow an overall progression from
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`simple to more complex topics, but they vary in how they group and order topics. See, e.g., ECF
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`No. 72-7 at 4-7; ECF No. 72-8 at 4-5. Therefore, the Court declines to exclude the Axzo Manual’s
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`particular arrangement of topics from the “total concept and feel” calculus.
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`iv. Organization of Each Chapter
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`Logical next identifies the organization of each chapter as a similar element between the
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`manuals. Both manuals do share a parallel arrangement. Each chapter begins with a page that
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`displays the objectives for the chapter and estimates the time to complete the chapter. A chapter
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`is then divided into a number of subchapters on specific topics. A subchapter starts with an
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`explanation of the topic, which may be accompanied by charts, graphics, and step-by-step
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`instructions. The subchapter provides an exercise for the student to reinforce the topic. Finally,
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`each chapter ends with a summary of the lessons learned in the chapter and an additional exercise
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`for the student to complete. In addition, both manuals include review questions.
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`3 Logical’s instructional-design expert notes that “courseware that is organized with general, lower-level
`concepts first with content progressing in complexity” is evidence of the use of “Subsumption Theory”—a
`theory of learning. ECF No. 72-6 at 12.
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`The Court is skeptical that copyright protection could be afforded to the use of this general
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`arrangement, as it appears to reflect a pedagogical method or technique. See 17 U.S.C. § 102(b)
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`(barring from copyright protection “any idea, procedure, process, system, method of operation,
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`concept, [or] principle”). Adam Wilcox stated in his deposition that “everyone” in the industry
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`uses the same basic instructional-design theory, which he attributed to David Ausubel. ECF No.
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`74-2 at 12. As Michelle L. Wescott—Logical’s instructional-design expert—explains, this theory
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`contemplates a particular arrangement for a lesson: a lesson should begin with a short summary of
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`the lesson’s aim and how the lesson relates to current knowledge, followed by an explanation of
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`the relevant concepts and “[m]eaningful practice.” ECF No. 72-6 at 12. Wescott opines that “a
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`book’s overall structure and use of features . . . is usually driven by the learning theory used.” Id.
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`That is, the sequence and manner of instruction depends in part on the “learning theory” to which
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`the author adheres.4 See id. at 11-12. Under § 102(b), however, Logical can hold no monopoly
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`over the idea of using a specified pedagogical technique—that is, the use of a particular sequence
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`and structure of instruction—to teach Microsoft Excel skills. The overall structure of each chapter
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`is not, standing alone, protectible. See Kepner-Tregoe, Inc. v. Carabio, No. 8-71025, 1979 WL
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`1072, at *6 (E.D. Mich. Apr. 20, 1979) (concluding that company that developed management
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`training program had “no monopoly on any pedagogical technique” that it used in its program).
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`But again, recognizing that the overall structure of each lesson is perhaps unprotectible
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`does not mean that the Court may not consider the disputed works’ lesson structures in assessing
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`the total concept and feel. Many creative decisions must be made in the course of laying out a
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`lesson in accordance with that general framework. Among other things, one must select how many
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`4 To be sure, Wescott also emphasizes that “there is still much room for variation” and that “learning
`theory does not dictate the overall look and feel of a book.” ECF No. 72-6 at 12.
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`Case 6:15-cv-06646-FPG-JWF Document 76 Filed 12/17/18 Page 16 of 22
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`concepts to include in a single lesson; decide how much explanation to provide before giving an
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`exercise; decide how many exercises and activities to include; and, of course, decide how to
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`express the content of the lesson—how a topic is explained, what sorts of graphics are used to
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`illustrate concepts, the particular phrasing and instructions for exercises and review questions, etc.
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`These creative choices are not excluded when assessing substantial similarity.
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`v. Two-Column Table for Exercises
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`An exercise in the 30 Bird Manual. ECF No. 74-2 at 171.
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`An exercise in the Axzo Manual. ECF No. 74-2 at 366.
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`An element of particular concern to Logical