`Pursuant to Sixth Circuit I.O.P. 32.1(b)
`
`File Name: 20a0309p.06
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE SIXTH CIRCUIT
`
`
`
`
`HILLER, LLC,
`
`
`
`
`
`
`
`v.
`
`Plaintiff-Appellee,
`
`SUCCESS GROUP INTERNATIONAL LEARNING ALLIANCE,
`LLC, et al.,
`
`Defendants,
`
`
`
`CLOCKWORK IP, LLC,
`
`Intervenor-Appellant.
`
`
`
`
`
`
`
`
`No. 19-6115
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`
`Appeal from the United States District Court
`for the Middle District of Tennessee at Nashville.
`No. 3:17-cv-00743—Jon Phipps McCalla, District Judge.
`
`Argued: August 6, 2020
`
`Decided and Filed: September 23, 2020
`
`Before: SUHRHEINRICH, GIBBONS, and BUSH, Circuit Judges.
`
`_________________
`
`COUNSEL
`
`ARGUED: Brad R. Newberg, MCGUIRE WOODS LLP, Tysons, Virginia, for Appellant.
`Jeffrey J. Catalano, FREEBORN & PETERS LLP, Chicago, Illinois, for Appellee. ON BRIEF:
`Brad R. Newberg, MCGUIRE WOODS LLP, Tysons, Virginia, Lucy Jewett Wheatley, Brian D.
`Schmalzbach, MCGUIRE WOODS LLP, Richmond, Virginia, for Appellant. Jeffrey J.
`Catalano, FREEBORN & PETERS LLP, Chicago, Illinois, Jason P. Stearns, FREEBORN
`& PETERS LLP, Tampa, Florida, for Appellee.
`
`
`
`
`
`No. 19-6115
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`Hiller, LLC v. Success Group Int’l, et al.
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`Page 2
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`
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`_________________
`
`OPINION
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`_________________
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`SUHRHEINRICH, Circuit Judge. Appellant Clockwork IP, LLC intervened in this
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`copyright case to claim that it—not the plaintiff and registered copyright holder Hiller, LLC1—
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`owned the allegedly-infringed work, a customer-service training guide for HVAC technicians
`
`(the Guide). The jury rejected Clockwork’s sole request for relief: a declaration invalidating
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`Hiller’s copyright in the Guide.
`
`Clockwork makes two arguments on appeal.2 First, Clockwork contends that the district
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`court erred by denying its motion for judgment as a matter of law because no reasonable juror
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`could have found that Hiller owns a copyright in any part of the Guide. Second, Clockwork
`
`asserts that the district court improperly instructed the jury that Hiller could hold a copyright in
`
`the Guide, even though it contained Clockwork-copyrighted material, so long as that material did
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`not “pervade[] the entire work.”
`
`Clockwork is wrong on both points. The jury reasonably concluded that Hiller created
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`enough original material to gain copyright protection,3 and the district judge correctly instructed
`
`the jury that the Guide’s incorporation of some Clockwork-copyrighted content did not
`
`invalidate Hiller’s copyright in the Guide’s original parts. We affirm.
`
`I. BACKGROUND
`
`Hiller, LLC provides plumbing, heating, cooling and electrical services (referred to
`
`collectively as home services) to residential and commercial customers. Jimmy Hiller, Sr. began
`
`his career as a plumber’s apprentice and founded Hiller as a one-man operation in 1990. Hiller
`
`
`1Hiller, LLC is distinct from its owner, Jimmy Hiller, Sr. All uses of “Hiller” in this opinion refer to the
`LLC, not to Mr. Hiller.
`
`2The defendant in the action below, Success Group International, also appealed, but later settled its dispute
`with Hiller and voluntarily dismissed its appeal before the briefing stage.
`
`3As discussed below, Hiller’s copyright may not cover everything in the Guide, but we have not been asked
`to define the scope of Hiller’s copyright, only to review the jury’s conclusion that it exists.
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`Page 3
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`grew to be the largest home-services company in Tennessee, employing roughly 400 service
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`technicians.
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`In 1999, Hiller began paying a monthly fee to be a “member” of Success Group
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`International, an organization that offers management advice and customer-service training to
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`home-services companies. At that time, a company called Clockwork Home Services, Inc.
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`owned Success Group, and Success Group conducted training courses using manuals
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`copyrighted by Clockwork (the Manuals). Hiller sent its employees to those courses, and they
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`had access to the Manuals.
`
`In 2014, Clockwork (by that time operating as Clockwork IP, LLC) sold Success Group
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`to a collection of investors doing business as Aquila Investment Group, LLC. Rebecca Cassel
`
`(a former Clockwork employee) led Aquila’s efforts, and she convinced Jimmy Hiller, Sr. to
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`invest in Aquila as well. As a part of the transaction, Clockwork retained ownership of the
`
`copyrights in the Manuals but granted Aquila a perpetual license to use the Manuals in the
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`normal course of Success Group’s training business.
`
`In March of 2015, Hiller hired a company called the Bob Pike Group to create the Guide.
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`Hiller planned to use the Guide (instead of the Manuals) to train its technicians how to conduct a
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`service appointment (referred to in the industry as a call). Jimmy Hiller, Sr. hoped that Pike
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`could design training materials that were “more interactive” and “more engaging” than the
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`Manuals.
`
`Pike had no expertise in the home-services industry, so it could not create the Guide
`
`without first learning the practices that Hiller wanted to teach its employees. To do so, Pike
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`conducted a two-day workshop designed to elicit Hiller’s goals, its “metrics for success,” and the
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`“behaviors required to achieve these metrics.” Pike employee Vicki Lind and a Pike
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`subcontractor named Janice Horne led the workshop. Jimmy Hiller, Sr., Hiller’s director of
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`training Mitch Mobley, and other Hiller employees attended the meeting on behalf of Hiller.
`
`Rebecca Cassel attended on behalf of Aquila and Success Group. The workshop participants
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`referred to at least one of the Manuals for ideas during the workshop.
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`Page 4
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`Horne began by asking the participants to brainstorm the objectives of the Guide,
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`including the techniques that make up a successful service call. They wrote their ideas on 4x6
`
`notecards, and then, as a group, “decided what to leave in, what to cross off, and the most
`
`important concepts.” The group then organized the behaviors under discrete headings, which
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`became a “roadmap” for the project. Someone took pictures of the arrangement of notecards,
`
`and, from those pictures, Pike created an outline for the Guide.
`
`Based on that outline, Horne constructed the Guide. The Guide is 117 pages long. Its
`
`first section, “Need to Know” sets out the six steps to a successful service call: (1) prepare for
`
`the call, (2) set the tone, (3) diagnose issue, (4) get approval, (5) do the work, and (6) close. The
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`second section, “Nice to Know,” contains a glossary of industry terms, “sample scripting” for
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`typical interactions with customers, and technical diagrams about whether to repair or replace an
`
`appliance.
`
`For some passages of the Guide, Horne simply incorporated content generated at the
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`design workshop. For example, in the “prepare for the call” section, Horne listed four steps:
`
`(1) prepare self, (2) prepare truck, (3) review service history, and (4) confirm directions. These
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`headings correspond closely to a list created at the design workshop.
`
`For other sections, Horne asked Hiller for content to fill the gaps left after the design
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`workshop. In August of 2015, for example, Horne asked Hiller for a “[l]ist of 10-12 words (or
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`phrases) to lose and what [the technicians] should use instead.” In October, she asked for
`
`examples of “objections that would be typical coming from the customer” and “[e]xamples of
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`Sincere [sic] compliments.” Some of this gap-filling content was taken directly from the
`
`Manuals. For example, much of the “sample scripting” is lifted word-for-word. In addition, the
`
`Guide includes a graphic meant to juxtapose the cost of keeping a current appliance with the cost
`
`of replacing it instead. That graphic was taken from the Manuals.
`
`Horne also added original text in the Guide’s section regarding communication skills.
`
`For example, the Guide contains a graphic describing four personality types and their
`
`corresponding traits. Horne created that passage based on her knowledge of “DISC,” which is
`
`“a personality profile that’s common in the work world.”
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`Page 5
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`When Horne completed the textual content of the Guide, one of Pike’s graphic designers
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`added pictures and made final revisions to the formatting and layout. Pike delivered the final
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`version of the Guide in December of 2015 and later assigned its copyright in the Guide to Hiller.
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`The events giving rise to this lawsuit occurred not long after completion of the Guide. In
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`January of 2016, Success Group (led by Rebecca Cassell) conducted a class called “Service
`
`Essentials” using a workbook that closely resembled the Guide. In June of 2016, Hiller ended its
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`Success Group membership, and Jimmy Hiller, Sr. sold his shares in Aquila. In July, Hiller’s
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`attorneys demanded that Success Group stop using the Service Essentials workbook. In March
`
`of 2017, Hiller registered its copyright in the Guide, and in April Hiller sued Success Group and
`
`Rebecca Cassel for copyright infringement. In December of 2017, Clockwork moved to
`
`intervene in the case, alleging that “Clockwork . . . is the owner of the intellectual property that
`
`Hiller claims has been infringed by Defendants Success Group International Learning Alliance,
`
`LLC . . . and Rebecca Cassel” and seeking declaratory relief to that effect. The district court
`
`granted Clockwork’s motion to intervene.
`
`The district court conducted a jury trial over the course of seven days in March of 2019.
`
`The jury heard testimony from (among others) Jimmy Hiller, Sr., Rebecca Cassel, Janice Horne,
`
`and Clockwork’s vice president of training, Lance Sinclair. The jury reviewed the Guide, the
`
`Manuals, and the allegedly infringing Success Group workbook. The jury concluded that Hiller
`
`had a valid copyright in the Guide and that the Success Group workbook copied protected
`
`elements of the Guide. The jury rejected Clockwork’s request for declaratory relief invalidating
`
`Hiller’s copyright. Clockwork moved for a judgment notwithstanding the verdict, which the
`
`district court denied.
`
`II. ANALYSIS
`
`A.
`
`Sufficient evidence supports the jury’s verdict that Hiller owns a copyright in the
`Guide.
`
`Clockwork argues that the district court should have granted its motion for judgment as a
`
`matter of law, which sought a declaration that Hiller does not own a copyright in any part of the
`
`Guide. That argument is two-pronged. First, Clockwork asserts that the Guide lacks
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`Page 6
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`
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`independently created material, which is required to meet the Copyright Act’s originality
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`requirement. Second, Clockwork contends that Hiller should lose its copyright because the
`
`Guide contains content taken from the Manuals.
`
`1.
`
`Standard of Review
`
`To prevail in its challenge to the district court’s denial of its motion for judgment as a
`
`matter of law under Federal Rule of Civil Procedure 50(b), Clockwork must establish that,
`
`viewing the evidence in the light most favorable to Hiller, reasonable minds could “come to but
`
`one conclusion” in Clockwork’s favor. Sykes v. Anderson, 625 F.3d 294, 305 (6th Cir. 2010).
`
`2.
`
`The jury reasonably determined that the Guide contains enough
`originality to establish copyright protection.
`
`Clockwork argues that the Guide lacks the originality necessary to confer a copyright.
`
`As discussed below, the jury could reasonably have found that the Guide contains enough
`
`originality in its selection and organization to meet the originality threshold for copyright
`
`protection.
`
`“To qualify for copyright protection, a work must be original to the author.” Feist
`
`Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991) (citing Harper & Row,
`
`Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 547–549 (1985)). “Original, as the term is
`
`used in copyright, means only that the work was independently created by the author (as opposed
`
`to copied from other works), and that it possesses at least some minimal degree of creativity.”
`
`Id. “[T]he requisite level of creativity is extremely low; even a slight amount will suffice. The
`
`vast majority of works make the grade quite easily, as they possess some creative spark, ‘no
`
`matter how crude, humble or obvious’ it might be.” Id. Even a work that contains “no
`
`protectable written expression . . . meets the constitutional minimum for copyright protection if it
`
`features an original selection or arrangement.” Id. at 348 (citing Harper & Row, 471 U.S. at
`
`547).
`
`The Guide contains original material (i.e., content created independently by or on behalf
`
`of Hiller). For example, page 11 of the Guide features a graphic depiction of the six steps that
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`Hiller wants its technicians to follow:
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`Page 7
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`
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`The man in the picture frame represents the first step, “Prepare for the Call.” The next five steps
`
`are depicted by corresponding pictures in a clockwise orientation arranged around a ship’s wheel
`
`that is crossed by the label “Communication.” Janice Horne and Pike’s graphic designer Sandy
`
`DuFault chose these images to represent the six-step process identified during the two-day
`
`design workshop that Pike conducted for Hiller.
`
`Likewise, page 15 of the Guide offers four steps meant to help the technician “Prepare for
`
`the Call.” The four steps are: “Prepare Self,” “Prepare Truck,” “Review Service History,” and
`
`“Confirm Directions.” Under “Prepare Self,” the Guide lists two subcomponent steps and one
`
`blank space for notes. Under “Prepare Truck” is the following fill-in-the-blank exercise:
`
`Under “Review Service History” are seven blank spaces with a two-column heading labelled
`
`“What?” and “Why?” Under “Confirm Directions” are three blank spaces for notes. Similarly,
`
`page 37 of the Guide provides three steps that will help the technician “Set the Tone,” with each
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`step including some combination of subcomponent steps, fill-in-the-blank sentences, and empty
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`spaces for notes. Again, Janice Horne and Sandy DuFault created these graphic depictions based
`
`on information selected and organized at the design workshop.
`
`Taken together, the Guide’s choices regarding selection and organization meet the
`
`originality threshold for copyright protection. See Feist, 499 U.S. at 345. These choices are
`
`“creative” in the sense that they show inventiveness and imagination. See Creative, OXFORD
`
`ENGLISH DICTIONARY (3d ed. 2010). And these elements were “independently created” on
`
`behalf of Hiller by Janice Horne and Sandy DuFault. See Feist, 499 U.S. at 345.
`
`For those reasons, the jury reasonably concluded that Hiller owns a valid copyright with
`
`respect to the Guide, which would extend copyright protection to any original parts of the Guide
`
`that did not incorporate copyright-protected elements of the Manuals.
`
`3.
`
`The jury reasonably concluded that Hiller’s copyright covers original
`portions of the Guide, even if other portions of the Guide were
`authored by Clockwork.
`
`Clockwork asserts that Hiller cannot own a copyright in the Guide because the Guide
`
`incorporated content from Clockwork’s Manuals. However, for the reasons below, the jury
`
`could reasonably have found that, although the Guide contains content taken from the Manuals,
`
`Hiller nevertheless holds a copyright in the parts of the Guide that do not copy from the Manuals.
`
`As the district court instructed the jury, “[c]opyright protection does not extend to all the
`
`elements of a copyrighted work.” The “non-covered elements” that fall outside of copyright
`
`protection include “a[ny] portion of the work that is not original to the author.” Id.; see 17
`
`U.S.C. § 103(b) (“The copyright in [preexisting material] extends only to the material
`
`contributed by the author of such work, as distinguished from the preexisting material employed
`
`in the work.”). Based on that standard, the district court asked the jury to determine whether
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`Success Group “copied the protected components of the [Guide].” As to Clockwork’s claim, the
`
`jury was only asked to determine whether Clockwork had “proven by a preponderance of the
`
`evidence that it [i.e., Clockwork] owns the copyright of the Technician Guide [i.e., the Guide].”
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`No. 19-6115
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`Hiller, LLC v. Success Group Int’l, et al.
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`Page 9
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`Applying those instructions, the jury reasonably found that Hiller maintained a valid
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`copyright in the Guide, which would extend copyright protection to the Guide’s original content
`
`(for example, the original passages described in the previous section) but would not cover the
`
`content taken from the Manuals.4
`
`Clockwork argues that Hiller’s unauthorized incorporation of Clockwork-copyrighted
`
`material should completely invalidate Hiller’s copyright in the Guide. Clockwork bases that
`
`argument on the section of the Copyright Act that grants an author the exclusive right to create
`
`derivative works. See 17 U.S.C. § 106(2) (“[T]he owner of copyright has the exclusive right[]
`
`. . . to prepare derivative works based upon the copyrighted work.”). A derivative work is one
`
`that is “based upon one or more preexisting works, such as a translation, musical arrangement,
`
`dramatization, fictionalization, motion picture version, sound recording, art reproduction,
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`abridgment, condensation.” § 101.
`
`However, even if the jury determined that the Guide is a derivative work,5 Hiller would
`
`still retain its copyright in any discrete parts of the Guide that were not copied from the Manuals.
`
`See § 103(a) (“[P]rotection for a work employing preexisting material in which copyright
`
`subsists does not extend to any part of the work in which such material has been used
`
`unlawfully.” (emphasis added)).
`
`Clockwork asserts that Hiller should lose all copyright protection because the entire
`
`Guide is based on Clockwork’s “copyrighted system.” However, as the jury was instructed,
`
`“[c]opyright law does not give an author the right to prevent others from copying or using the
`
`underlying ideas contained in the author’s work, such as procedures, processes, systems,
`
`
`4Because Success Group settled with Hiller and dropped its appeal, we will not parse the Guide to decide
`precisely what parts are copyright protected.
`
`5The jury had strong reasons to find that the Guide is not a derivative work, even if the Guide was based on
`the same system described by the Manuals. When a work is based on unprotected elements of a prior work (such as
`the underlying idea or system), it is not derivative of that work. See 1 MELVILLE B. NIMMER & DAVID NIMMER,
`NIMMER ON COPYRIGHT § 3.01(Matthew Bender, Rev. Ed. 2020) (“Th[e] reference to ‘preexisting works’ [in the
`definition of derivative work], as compared with the reference to ‘preexisting materials’ in the coordinate definition
`of a ‘compilation’ implies that a derivative work, unlike a compilation, must incorporate that which itself is the
`subject of copyright.”); see also Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1080 (9th Cir. 2000) (holding that a
`photograph of a vodka bottle was not derivative of the bottle because the design of the bottle was a “utilitarian
`object that cannot be copyrighted”).
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`Page 10
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`
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`methods of operation, concepts, principles, or discoveries.” Accord § 102 (“In no case does
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`copyright protection for an original work of authorship extend to any idea, procedure, process,
`
`system, method of operation, concept, principle, or discovery, regardless of the form in which it
`
`is described, explained, illustrated, or embodied in such work.”). Many of the similarities
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`between the Guide and the Manuals—such as advising technicians to “park on the street,”
`
`establish “eye contact,” wear “shoe covers,” and use “premium tools”—are not protectable under
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`copyright law, either because they are short phrases, see 37 C.F.R. § 202.1, or because the
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`underlying ideas are “merged” with their expression, see Lexmark Int’l, Inc. v. Static Control
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`Components, Inc., 387 F.3d 522, 535 (6th Cir. 2004) (noting that under the merger doctrine,
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`“[w]here the ‘expression is essential to the statement of the idea,’ or where there is only one way
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`or very few ways of expressing the idea, . . . copyright protection does not exist because granting
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`protection to the expressive component of the work necessarily would extend protection to the
`
`work’s uncopyrightable ideas as well.” (internal citations omitted) (quoting CCC Info. Servs.,
`
`Inc. v. Maclean Hunter Mkt. Reports, Inc., 44 F.3d 61, 68 (2d Cir. 1994)) (citing Warren Publ’g,
`
`Inc. v. Microdos Data Corp., 115 F.3d 1509, 1519 n.27 (11th Cir. 1997); Gates Rubber Co. v.
`
`Bando Chem. Indus., Ltd., 9 F.3d 823, 838 (10th Cir. 1993))).
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`Accordingly, the jury reasonably concluded that Hiller had copyright protection over any
`
`original parts of the Guide that did not incorporate copyright-protected content from the
`
`Manuals.
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`B. The district court’s jury instructions correctly apply the law to this case.
`
`Clockwork alternatively seeks a new trial based on the district court’s instruction to the
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`jury that “[a] copyright is invalid where unauthorized preexisting material pervades the entire
`
`work or [the work] is inextricably intertwined with the preexisting material,” which according to
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`Clockwork might have resulted in a verdict “based on a non-viable legal theory.” Clockwork
`
`argues that the author of an unauthorized derivative work forfeits all copyright protection in the
`
`work, regardless of whether preexisting material “pervades” it.
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`Page 11
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`1.
`
`Standard of Review
`
`To be granted a new trial based on allegedly erroneous jury instructions, Clockwork must
`
`show that the “instructions, taken as a whole, are misleading or give an inadequate understanding
`
`of the law.” Miami Valley Fair Hous. Ctr., Inc. v. Connor Grp., 725 F.3d 571, 579 (6th Cir.
`
`2013) (quoting Jones v. Federated Fin. Reserve Corp., 144 F.3d 961, 966 (6th Cir. 1998).
`
`2.
`
`The district court properly instructed the jury that Hiller would completely
`lose its copyright in the Guide only if unauthorized Clockwork material
`“pervaded” the Guide.
`
`Clockwork asserts that the district court erred by instructing the jury that “[w]here use of
`
`unauthorized preexisting material pervades the entire work . . . , copyright protection may not be
`
`granted.”
`
`
`
`That instruction correctly follows directly from two sections of the Copyright Act. First,
`
`section 106 gives the author of an original work the exclusive right to create new works that are
`
`derivative of (i.e. “based on”) that work. 17 U.S.C. § 106(2). Accordingly, when a person
`
`creates a derivative work without the original author’s permission, that person has unlawfully
`
`used the original work. Second, section 103 provides that a work can be copyrighted even if it
`
`unlawfully incorporates preexisting material, but protection for such a work “does not extend to
`
`any part of the work in which such material has been used unlawfully.” § 103(a). The district
`
`court’s “pervades” instruction is a logical corollary of these two principles: Hiller would lose all
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`copyright protection in the Guide only if content from Clockwork’s Manuals ran throughout
`
`every “part” of the Guide, or in other words “pervaded” it.
`
`
`
`In most cases regarding derivative works, that instruction would be unnecessary because
`
`the determination that a work is derivative would necessarily imply that the preexisting work
`
`“pervades” the derivative. See Pickett v. Prince, 207 F.3d 402, 407 (7th Cir. 2000) (finding that
`
`an original work (the graphic symbol used by the artist Prince) “clearly ‘pervade[d]’” two
`
`derivative works (guitars that were shaped like that symbol) and noting that “[i]f it did not, the
`
`guitars might not be derivative works”). That is, in most cases, a work that “adapts” or “recasts”
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`Page 12
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`another work without permission would contain no discrete “parts” that did not unlawfully use
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`the original work.6
`
`However, because the Guide contains discrete parts, some of which are clearly not based
`
`on protected elements the Manuals, the district court properly instructed the jury that it could
`
`find that Hiller maintained a copyright in some parts of the Guide even if other parts copied from
`
`the Manuals without authorization.7
`
`For these reasons, we affirm.
`
`
`
`
`
`
`6Clockwork relies on other cases involving derivatives that, like the guitar in Pickett, obviously are
`pervaded by the original work. See Keeling v. Hars, 809 F.3d 43 (2d Cir. 2015) (live-action parody of the movie
`Point Break); U.S. Auto Parts Network, Inc. v. Parts Geek, LLC, 692 F.3d 1009, 1013 (9th Cir. 2012) (updated
`version of a software program).
`
`7Clockwork also argues that the district court erred by allowing the jury to find that Hiller had
`authorization to incorporate content from the Manuals. However, because the jury could reasonably have found that
`Hiller had a copyright in the original parts of the Guide even if it lacked authorization to incorporate content from
`the Manuals, any such error would have been harmless.
`
`