RECOMMENDED FOR FULL-TEXT PUBLICATION
`Pursuant to Sixth Circuit Rule 206
`File Name: 06a0358p.06
`UNITED STATES COURT OF APPEALS
`FOR THE SIXTH CIRCUIT
`_________________
`
`ROSS, BROVINS & OEHMKE, P.C., doing business as
`LawMode,
`
`Plaintiff-Appellant,
`
`v.
`
`LEXIS NEXIS GROUP, a Division of Reed Elsevier
`Group, PLC, and Owner of Matthew Bender and
`Company, Inc.,
`
`Defendant-Appellee.
`
`X---->,------N
`
`No. 05-1513
`
`Appeal from the United States District Court
`for the Eastern District of Michigan at Detroit.
`No. 03-74474—Nancy G. Edmunds, District Judge.
`
`Argued: April 25, 2006
`
`Decided and Filed: September 15, 2006
`
`Before: SUHRHEINRICH, GILMAN, and ROGERS, Circuit Judges.
`_________________
`COUNSEL
`ARGUED: Thomas H. Oehmke, ROSS, BROVINS & OEHMKE, Northport, Michigan, for
`Appellant. Charles S. Sims, PROSKAUER ROSE, New York, New York, for Appellee.
`ON BRIEF: Thomas H. Oehmke, ROSS, BROVINS & OEHMKE, Northport, Michigan, for
`Appellant. Charles S. Sims, Frank Scibilia, PROSKAUER ROSE, New York, New York, for
`Appellee.
`
`_________________
`OPINION
`_________________
`ROGERS, Circuit Judge. This is a copyright dispute regarding software for filling out legal
`forms. LawMode compiled and organized a number of Michigan legal forms and, using a Lexis-
`owned program, created templates for filling out the forms. After marketing LawMode’s product
`for five years, Lexis terminated its contract with LawMode and proceeded to compile, create, and
`market its own set of Michigan form templates. LawMode sued Lexis for copyright violation and
`contract breach. We affirm the district court’s judgment dismissing LawMode’s copyright claims
`against Lexis. First, while LawMode has a valid copyright in both the selection of forms in its
`compilation and the organization of those forms, the copyrighted work is not substantially similar
`
`1
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`

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`No. 05-1513
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`Ross Brovins & Oehmke v. Lexis Nexis Group
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`Page 2
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`to the allegedly infringing Lexis product. Second, LawMode’s selection and placement of input
`items for its form templates involves too little creativity to warrant copyright protection, and Lexis
`consequently did not commit copyright infringement in this regard. However, we reverse the district
`court’s dismissal of LawMode’s breach-of-contract claim pursuant to a motion for judgment on the
`pleadings because LawMode stated a claim for breach of contract.
`I. Background
`Doing business as LawMode, the firm of Ross, Brovins & Oehmke, P.C., entered an
`agreement with Lexis to create and market a system of automated Michigan legal forms. LawMode
`entered a contract with Lexis in 1997, later modified in 1999, which required LawMode to create
`various templates for filling in the required information for selected Michigan legal forms.
`LawMode also organized those templates into a user-friendly software program. This program
`allowed users to keyboard case-specific data into a series of on-screen dialog boxes. Users save the
`information entered into the dialog boxes into a data file, and the program automatically inserts the
`information into corresponding data fields on signature-ready legal forms. Most of the actual forms
`were forms approved by the Michigan State Court Administrative Office (SCAO), and therefore in
`the public domain.
`The advantage of LawMode’s templates was that case-specific information from one form
`could be easily transferred to another form as the case progressed. This eliminated the need for re-
`typing. The product contained 576 individual forms. While most of the forms were SCAO forms,
`LawMode independently created some of its own forms. This case pertains only to the automation
`of the SCAO forms because LawMode does not allege that Lexis copied any of its independently
`created forms.
`Under the 1999 agreement, LawMode promised to supply and update “form templates” using
`Lexis’s proprietary software called HotDocs Pro. These templates were defined in the 1999
`agreement as “Content.” Lexis would then publish those templates in the finished product, which
`was a CD or software available for download over the internet. The 1999 agreement defined the
`packaged CD or download as “Product.” During 1997-2002, Lexis paid LawMode $77,273 in
`royalties for sales of Product.
`Pursuant to the terms of the 1999 agreement, Lexis terminated its contract with LawMode
`in February of 2002. After the contract was terminated, LawMode was to retain all ownership of
`“Content,” defined as “HotDocs templates created by [LawMode].” On June 17, 2003, LawMode
`registered a copyright for its templates. Starting in July 2002, Lexis published its own version of
`the Product called LexisNexis Automated SCAO Forms (the “2002 Lexis Product”). The 2002
`Lexis Product contained 406 SCAO forms. Three hundred fifty of the forms that LawMode had
`selected also appear in Lexis’s work.
`Lexis claims that the templates contained in the 2002 Lexis Product were created
`independently of LawMode. LawMode argues that Lexis copied their templates, defined as
`“Content” in the 1999 agreement. It is undisputed that Lexis had access to Content, and LawMode
`argues that an internal memorandum encouraged Lexis programmers to look at the LawMode
`Content when creating templates in the 2002 Lexis Product. The memo said, “Ignore any and all
`markup and/or automation from former Michigan projects [i.e., LawMode’s Content] unless you are
`really confused about something.” LawMode also submitted a PowerPoint-style presentation that
`details similarities between LawMode’s templates and those in the 2002 Lexis Product. LawMode
`argues that the appearance of the LawMode templates and the appearance of the templates in the
`Lexis Product are nearly identical.
`
`

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`No. 05-1513
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`Ross Brovins & Oehmke v. Lexis Nexis Group
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`Page 3
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`LawMode filed a seven-count complaint against Lexis, alleging claims for copyright
`infringement, state-law claims for breach of contract, and various state-law claims alleging business
`torts. After filing the complaint, LawMode voluntarily dismissed its claims for unjust enrichment,
`unfair competition, breach of the duty of good faith and fair dealing, and most of its breach-of-
`contract claims. The remaining claims included a copyright claim and a breach-of-contract claim.
`LawMode alleges that Lexis infringed a compilation copyright (i.e., a copyright in the organization
`and selection of forms) and a copyright in the automating of the forms (i.e., creative choices in how
`the screen looks and how the variables are inter-related). The contract claim was for an alleged
`breach of Lexis’s promise not to misappropriate LawMode’s Content and not to continue to
`distribute Content after the termination of the agreement.
`After discovery, Lexis moved for summary judgment. Lexis argued that the templates were
`not protected by copyright, and, in the alternative, that Lexis did not copy them. In addition, Lexis
`argued that the contract claim did not meet the jurisdictional amount-in-controversy requirement,
`that the claim was preempted by copyright law, and that the complaint did not state that Lexis
`breached the agreement. In a December 9, 2004, order, the district court granted summary judgment
`for Lexis on the copyright claim but denied summary judgment on the contract claim. The district
`court reasoned that LawMode’s compilation of forms was copyrightable but that Lexis did not copy
`the compilation. The district court held that the organization of the forms, the look of the screen,
`and the interrelationship of the variables were not copyrightable. The district court denied all three
`of Lexis’s grounds for dismissing the contract claims. First, the district court held that the contract
`claim exceeded the jurisdictional minimum and that there was supplemental jurisdiction over it.
`Second, the district court held that the state-law contract claim was not preempted by the Copyright
`Act because the existence of a contract is an additional element not required for a copyright claim.
`Third, the district court found that the contract supported LawMode’s assertion that Lexis breached
`the contract, as stated in paragraph 48.b of the complaint, by “misappropriat[ing] LawMode’s
`Content.” Thus, one contract claim survived summary judgment.
`Lexis then filed a motion for reconsideration of the order denying summary judgment on the
`contract claim in paragraph 48.b of the complaint, arguing that the district court did not specify any
`contractual promise that would support a finding of breach of contract. On December 22, 2004, the
`district court denied the motion for reconsideration on the ground that a party is not permitted to
`raise, in a motion for reconsideration, new legal arguments that could have been raised in the initial
`summary judgment motion. Lexis does not challenge that order on appeal.
`Lexis then made the same argument in a motion for judgment on the pleadings under Federal
`Rule of Civil Procedure 12(c). The district court applied the standard for judgment on the pleadings,
`which is the same as the standard for a motion under Rule 12(b)(6). The district court reasoned that,
`on its face, the agreement does not contain a promise that Lexis will not misappropriate LawMode’s
`templates. Thus, the district court dismissed LawMode’s remaining contract claim and dismissed
`the case.
` LawMode filed a timely notice of appeal.
`II. Copyright
`LawMode’s templates are a compilation protected by copyright, but, even taking the facts
`in the light most favorable to LawMode, Lexis did not infringe that copyright. See Matsushita Elec.
`Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (describing the summary judgment
`standard). A compilation is a “work formed by the collection and assembling of preexisting
`materials . . . that are selected, coordinated or arranged in such a way that the resulting work as a
`whole constitutes an original work of authorship.” 17 U.S.C. § 101. The selection and
`categorization of the forms are protectable elements of the work. Although the collection and
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`categorization of the forms are protected by copyright, the district court properly dismissed those
`claims because Lexis’s product is not substantially similar to LawMode’s collection and
`categorization. LawMode also claims that the computer programming that created the interrelation
`of the variables in the templates is protected. On the facts of this case, however, these items are not
`copyrightable because they exhibit too little creativity.
`A. LawMode’s selection of forms
`While LawMode’s selection of forms is sufficiently creative to warrant copyright protection,
`LawMode’s and Lexis’s selections are not similar enough to constitute copying. The two elements
`for copyright infringement are: (1) ownership of a valid copyright, and (2) copying of that
`expression. See Stromback v. New Line Cinema, 384 F.3d 283, 293 (6th Cir. 2004). The first
`element is met,1 but the second is not.
`Lexis did not copy any “protectable” elements of LawMode’s compilation. Id. at 294
`(holding that the substantial similarity inquiry requires the court to look at protectable elements of
`the plaintiff’s work and determine whether the allegedly infringing work is “substantially similar”
`to the protectable elements). This conclusion is compelled by the differences between LawMode’s
`and Lexis’s compilations. The differences show that Lexis used sufficient judgment and creativity
`to compel a reasonable fact finder to conclude that one compilation is not a copy of the other. Our
`conclusion in this regard is supported by two related considerations. First, Lexis did not include
`a sufficiently large percentage of the same forms to permit a finding of copying. Second,
`nonquantitative aspects of the two compilations support the conclusion that Lexis created a new
`work rather than a copy of LawMode’s.
`The percentage of forms in LawMode’s compilation that may be found in Lexis’s
`compilation is not particularly high. LawMode asserts that its compilation contains 576 forms and
`Lexis’s 2002 compilation contains 406 forms. According to LawMode, 350 of the forms in the
`Lexis compilation also appeared in LawMode’s compilation. Thus, Lexis’s compilation included
`61%, or 350 out of 576, of LawMode’s form selection.2
`In Feist the Supreme Court indicated that “notwithstanding a valid copyright, a subsequent
`compiler remains free to use the facts contained in an author’s publication to aid in preparing a
`competing work, so long as the competing work does not feature the same selection and
`arrangement.” Feist, 499 U.S. at 349 (emphasis added). Subsequent cases have interpreted Feist
`to mean that compilation copyright protection is very limited and usually requires substantial
`verbatim copying. Key Pub’ns v. Chinatown Today, 945 F.2d 509, 514 (2d Cir. 1991). Sixty-one
`percent can hardly be considered the “same” selection. See, e.g., Schoolhouse Inc. v. Anderson, 275
`
`1LawMode’s expression in selecting which forms to include is protected by copyright. LawMode’s collection
`of 576 forms from a universe of over 700 forms is protected by copyright even though the forms themselves are not
`copyrightable individually. See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 348 (1991). This is because
`LawMode’s decision of which forms to include shows that modicum of creativity necessary to turn mere selection into
`copyrightable expression. See id. at 345.
`2It is true that 350 divided by 406 yields a higher percentage, as the district court noted. Ross, Brovins &
`Oehmke, P.C. v. Lexis Nexis, 348 F. Supp. 2d. 845, 858 (E.D. Mich. 2004). But as the Second Circuit reasoned in Key
`Publications, the percentage of the plaintiff’s compilation used by the defendant is typically the more relevant number.
`In Key Publications v. Chinatown Today, 945 F.2d 509, 515 (2d Cir. 1991), the Second Circuit considered whether the
`defendant’s Chinese American-Life Guide, a yellow pages of interest to the Chinese community, copied the selection
`of businesses included within the plaintiff’s competing phone book. First, the Key Publications court considered that
`75% of the listings in defendant’s telephone directory were taken from plaintiff’s directory. Id. The 75% figure was
`not the relevant figure. Id. The better figure was that only 17% of plaintiff’s listings, or 1500 of 9000 listings, were
`copied. Id. As the Key Publications court noted, the significance of the copied material to the plaintiff’s work, rather
`than its significance to the defendant’s work, is important in evaluating substantial similarity.
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`F.3d 726, 729-30 (8th Cir. 2002) (holding that a ratio of seventy-four percent of the same items was
`not substantial similarity in light of Feist).
`To be sure, in Eckes v. Card Prices Update, 736 F.2d 859, 863-64 (2d Cir. 1984), the Second
`Circuit found that a directory that copied 5,000 out of 18,000 (28%) of plaintiff’s baseball card
`listings constituted copyright infringement. But in that case the defendant copied all of plaintiff’s
`listings of “premium” cards. Thus, the relevant percentage was more like 100%. This is not a case
`where Lexis replicated a discrete portion of LawMode’s work in its entirety.
`The Eckes case shows that careful attention must be paid to the nature of the creative
`expression that has allegedly been copied, and that sheer numbers out of context can be misleading.
`In this case, the nature of the material used by Lexis shows that there was no copying as a matter
`of law. The two works are so dissimilar in expression that reasonable minds could not differ as to
`the absence of substantial similarity. See Stromback, 384 F.3d at 294-95; see also Schoolhouse, 275
`F.3d at 729 (basing its decision on the response that a reasonable person would have toward the two
`works). It is undisputed that Lexis made the decision to add at least 35 forms to its database. It is
`also undisputed that Lexis chose not to include various forms used by LawMode in its compilation.
`The professional judgment used in selecting forms that gave LawMode copyright protection also
`gives Lexis protection from LawMode’s allegation of infringement.
`B. LawMode’s arrangement of forms
`Lexis’s arrangement and classification of the forms are also not sufficiently similar to
`LawMode’s to constitute a copyright violation, even assuming that there is sufficient originality to
`warrant copyright protection.3
`Because Lexis’s classification system is not substantially similar to LawMode’s
`classification system, it is not necessary to rely on Lexis’s argument that LawMode’s arrangement
`of forms is not copyrightable. Again, LawMode must provide sufficient evidence to show
`substantial similarity between its arrangement of the forms and Lexis’s arrangement. See Feist, 499
`U.S. at 361. While there are some similarities, they result from both parties’ copying the public
`Michigan forms index. Lexis did not copy LawMode’s original classification or arrangement.
`Many of LawMode’s table of contents headings are not original. The website with all
`Michigan-approved forms already groups forms under headings like “alternative dispute resolution,”
`“corporate” or “landlord tenant.” LawMode cannot claim creative expression when it used the same
`obvious classification headings as the Michigan public-domain classification because those
`classifications are not original. See Kregos v. Associated Press, 937 F.2d 700, 709 (2d Cir. 1991)
`(holding that arrangements following conventions that have been used before are not copyrightable).
`
`3The combination of all the choices made by LawMode (obvious and nonobvious) appears to establish the
`minimal level of creativity and originality needed for copyright protection. See Key Pub’ns, 945 F.2d at 513-15. Unlike
`the yellow pages in Feist, LawMode exhibited the minimal degree of creativity, originality, and professional judgment
`in determining how to categorize the forms to warrant copyright protection.
`LawMode’s classification system is like the copyrightable classification system in Key Publications, in which
`the Second Circuit held a yellow pages of businesses of interest to the Chinese community to be copyrightable, because
`the businesses were classified by the author using some categories created by the author, including “Bean Curd & Bean
`Sprout Shops” in addition to other obvious choices like “Accountants.” Id. Similarly, LawMode arranged the forms
`into a table of contents with such entries as “civil litigation,” “debt collection” and “concealed weapon license.” Much
`like the directory in Key Publications, LawMode’s index displayed some creativity and judgment in deciding which
`classifications were useful to the Michigan practitioner. For example, LawMode uses the category “concealed weapon
`license.” A concealed-weapon-license category does not appear on the Michigan index of forms. It appears that
`LawMode created the category. Thus, LawMode’s classification system appears to display the minimum level of
`creativity to warrant copyright protection.
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`

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`No. 05-1513
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`The original classification headings are not copied and, as a whole, Lexis’s and LawMode’s
`classification systems are not substantially similar. LawMode’s original work can be seen in
`classifications like “concealed weapon license” or “land contract forfeiture.” Those original
`classifications are not used by the public-domain Michigan classification. Lexis did not copy the
`nonobvious and nonpublic-use classifications in its table of contents. Thus, there has been no
`copying of LawMode’s creative expression. This conclusion is supported by the Second Circuit’s
`reasoning in Key Publications, 945 F.2d at 516, where the Second Circuit held that the arrangements
`of two directories were not substantially similar because a consumer faced with the two directories
`would instantly realize that they were different. Just as in Key Publications, a reasonable fact finder
`is compelled to conclude that LawMode’s and Lexis’s classification headings are not substantially
`similar.
`In sum, the district court properly granted summary judgment on the compilation-copyright
`claim because there was not sufficient evidence of copying of LawMode’s protectable expression.
`C. LawMode’s automation of the forms
`LawMode’s automation is not sufficiently original to warrant copyright protection. By
`“automation” we here mean the selection and placement of input fields for the form templates such
`that the desired information appears in the proper places on the SCAO forms. This copyright claim
`has two parts. First, LawMode claims that Lexis copied the appearance of the dialog boxes where
`a user enters information. LawMode does not have a valid copyright in the appearance of the dialog
`boxes because LawMode used the default settings on HotDocs, the tool used to create the templates.
`Choosing the default setting on an underlying authoring tool is not sufficiently creative to warrant
`copyright protection. Second, LawMode claims that Lexis copied the “automation” by copying the
`interrelationship of variables in the program. LawMode’s automation is not sufficiently creative to
`support a copyright because the choices that can be made to create templates to automate the SCAO
`forms are very limited. In fact, the choices are limited by the express dictates of the forms
`themselves. Thus, there is not enough originality in the “automation” to support a copyright.
`1. The appearance of dialog boxes
`Copyright law does not afford LawMode protection for the appearance of the dialog boxes
`because the appearance is not sufficiently original. The appearance is largely a result of the default
`settings on HotDocs, the template’s authoring tool.
`LawMode’s and Lexis’s dialog boxes look very similar, such that a user who looked at
`LawMode’s and Lexis’s dialog boxes would have a hard time telling the two products apart. Both
`of the dialog boxes are rectangular and have a blue-shaded header. The area in between text boxes
`is gray and the fonts are the same. In the table of contents, folders are displayed next to an icon that
`looks like a manila legal folder. The icon that lets a user close a dialog box is a large red X and the
`help icon is a blue question mark. These similarities result from both Lexis’s and LawMode’s using
`HotDocs as the authoring tool.
`The appearance of the dialog boxes is not original because it is a function of HotDocs’
`default settings. It is undisputed that the appearance of the dialog boxes is a function of the default
`settings on HotDocs. LawMode, however, points out that Lexis could have changed the appearance
`of the dialog boxes by not opting for the default settings. LawMode argues that Lexis chose the
`default settings, and thus Lexis copied LawMode’s “creative” choice by also using HotDocs’ default
`settings in its product.
`LawMode’s choice to use the default settings is not subject to copyright protection. Some
`programming choices are either too trivial to support a finding of originality or are so constrained
`by practical reality as to lack originality. See generally Lexmark Int’l Inc. v. Static Control
`
`

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`No. 05-1513
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`Ross Brovins & Oehmke v. Lexis Nexis Group
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`Page 7
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`Components, Inc., 387 F.3d 522, 540-41 (6th Cir. 2004). LawMode’s “choice” to use HotDocs’
`default settings was too trivial to be original because using the default setting amounted to no more
`than adopting the choices made by the developer of HotDocs. Copyright law extends protection to
`works that are “independently created by the author (as opposed to copied from other works).” See
`Feist, 499 U.S. 345-46. LawMode’s choice to use the default settings is more in the nature of
`copying from other works than independent creation. In the instant case, as Lexis’s software
`developer stated in her affidavit, HotDocs’ default settings are the most efficient choice.
`LawMode’s choice to use the default settings is not copyrightable because the decision to copy
`another person’s creative choice does not create an original work. As the district court noted,
`the fact that LawMode chose [HotDocs’] “default” settings is simply the result of
`[HotDocs’] preselecting the most convenient and efficient choices for the automator.
`LawMode’s choosing to use [HotDocs’] default settings, as opposed to selecting
`other less efficient options for automating the forms, also does not exhibit the
`amount of creativity necessary to support a copyright.
`Ross, Brovins & Oehmke, P.C. v. Lexis Nexis, 348 F. Supp. 2d. 845, 861 (E.D. Mich. 2004).
`2. The interactive aspect of the computer program
`Copyright law also does not afford protection to LawMode’s interrelation of variables in the
`templates, because the interrelation of variables is too basic and is compelled by the express terms
`of the underlying forms. A software designer might have copyrightable creative expression in the
`way that variables interact, particularly where the interrelationship of variables communicates
`information to the user that is not contained within the express terms of the form. LawMode’s
`programing choices, however, communicate no information and thus are not copyrightable.
`The variables in LawMode’s templates are interrelated. By “interrelated” we mean that the
`data entered on one template will affect the choices available on future templates. For example, if
`a user indicates that the user will be filing in a district court, the drop down box containing specific
`courts is activated so that the user can select the specific court. Correspondingly, the fields related
`to circuit courts are deactivated such that the user is not prompted to enter a specific circuit court.
`This makes sense because a case cannot be simultaneously filed both in a district court and in a
`circuit court.
`The interrelation of variables is dictated by the express terms of the forms and is not creative
`expression. By the express terms of the form, a case can be filed only in one court. Thus, the
`programming choice to permit the user the option of choosing a circuit court or a district court does
`not convey any information that is not expressly dictated by the terms of the forms. There is nothing
`original in translating the express terms of a form into HotDocs. See Feist, 499 U.S. 345-46.
`LawMode’s programming choices that merely follow the instructions on the underlying form are
`not creative expression protected by copyright.
`Though LawMode refers to Bucklew v. Hawkins, Ash, Baptie & Co., 329 F.3d 923 (7th Cir.
`2003), in support of its argument that LawMode’s automation is copyrightable, Bucklew actually
`favors Lexis because it illustrates that interrelationship of variables dictated by the express terms
`of the forms is not creative expression. Bucklew developed a software program using a standard
`spreadsheet application (e.g., Excel) that filled in Housing and Urban Development (HUD) forms.
`Id. at 925-26. The HUD forms required some arithmetic manipulations of salary data and other
`expenditures. Id. at 926. Bucklew’s program automatically performed required arithmetic after the
`user entered the raw data. Id. The Seventh Circuit held that three computerized forms were not
`copyrightable. Id. at 930-31. Though there was limited discussion of the role of interrelated
`variables in the court’s decision, the Seventh Circuit reversed despite the fact that Bucklew’s forms
`had interrelated variables. In many respects Bucklew’s forms were very similar to LawMode’s
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`forms. Both were computerized templates that filled in preexisting forms. Both had interrelated
`variables where an entry in one section would affect the result in another section. Yet, the
`interactive variables did not save Bucklew’s forms from a finding of uncopyrightability as a matter
`of law. In Bucklew, like this case, the interrelationship of variables was dictated by the express
`terms of the forms. Bucklew could not copyright the fact that his program added the figures as
`required by the HUD forms. Id. at 928. Similarly, LawMode cannot copyright the fact that its
`program interrelated variables to permit a user to pick only one court because the underlying form
`only permits a user to pick one court.
`Cases where interrelation of variables did support a copyright are distinguishable from this
`case because in those cases the interrelated variables communicated information to the user not
`contained within the express terms of a form. For example, in Manufacturers Technologies Inc. v.
`Cams Inc., a computerized form for estimating repair costs was held copyrightable where the form
`communicated information to the user about how parts needed to be identified, and the identification
`of parts affected the derivation of an estimate. 706 F. Supp. 984, 997 (D. Conn. 1989). That the
`forms in Manufacturers Technologies communicated information not contained on the face of the
`form to the user is the key distinction between copyrightable computerized forms and the
`uncopyrightable forms in this case. LawMode’s programming is not copyrightable because
`LawMode’s programming communicated no information not expressly contained on the face of the
`underlying forms.
`LawMode’s “automation” is not copyrightable because it merely translates the express terms
`of the underlying forms and does not convey new information.
`III. Contract claims dismissed under Rule 12(c)
`Because the agreement contained a promise not to sell LawMode’s Content after the
`agreement was terminated, LawMode can prove a set of facts (i.e., that Lexis continued to sell
`LawMode’s Content) that would entitle LawMode to relief. Thus, the dismissal of the remaining
`contract claim under Federal Rule of Civil Procedure 12(c) was error.
`Unlike summary judgment, which requires evidence that creates a material issue of fact, a
`motion under 12(c) assumes that the factual allegations in the complaint are true and asks whether
`the plaintiff undoubtedly can prove no set of facts in support of his claims that would entitle him to
`relief. See Zeigler v. IBP Hog Mkt., 249 F.3d 509, 511-12 (6th Cir. 2001). The district court, within
`its discretion, refused to consider the Rule 12(c) motion as a second motion for summary judgment.
`Lexis does not appeal this decision. In its first motion for summary judgment, Lexis failed to argue
`that it did not misappropriate LawMode’s content. This is to say that Lexis’s argument that it did
`not misappropriate LawMode’s content was never briefed at the summary judgment stage. Thus,
`we apply the Rule 12(c) standard, which is the same as the standard under Rule 12(b)(6). See
`Zeigler, 249 F.3d at 511-12. For purposes of the 12(c) motion, all well-pleaded material allegations
`of the pleadings must be taken as true and the motion is granted only when no material issue of fact
`exists and the moving party is entitled to judgment as a matter of law. Paskvan v. City of Cleveland
`Civil Serv. Comm’n, 946 F.2d 1233, 1235 (6th Cir. 1991).
`In its complaint, LawMode alleges that Lexis promised not to misappropriate LawMode’s
`“Content” by converting some or all of it to Lexis’s own use. LawMode also alleges that Lexis
`promised not to distribute the Content after the termination of the agreement. In LawMode’s
`Complaint, paragraph 48.b, LawMode alleges that Lexis breached that promise by misappropriating
`the templates and continuing to sell LawMode’s Content in the 2002 Lexis Product. Stated
`differently, LawMode alleges that Lexis terminated the contract but sold the 2002 Product that
`contained LawMode’s templates. Lexis argued that the contract contained no such promises and,
`if it did, the promises were not breached because the 2002 Lexis work was created independently.
`
`

`
`No. 05-1513
`
`Ross Brovins & Oehmke v. Lexis Nexis Group
`
`Page 9
`
`The 1997 contract, as modified in 1999, contains a promise that Lexis will not continue to
`sell LawMode’s content after termination of the agreement. The contract stated, “Upon termination
`of this Agreement for any reason, [Lexis] shall cease marketing and distribution of . . . Content
`which has been prepared by [Lexis] for distribution.” As noted above, “Content” means “HotDocs
`templates created by [LawMode].” In sum, even after the contract had been terminated Lexis agreed
`not to continue selling the HotDocs templates that LawMode created and Lexis packaged for sale.
`It was not proper to dismiss the remaining contract claim under Rule 12(c) because
`LawMode pled a breach of the contract. L