PUBLISH
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE TENTH CIRCUIT
`_________________________________
`
`FILED
`United States Court of Appeals
`Tenth Circuit
`
`August 11, 2020
`
`Christopher M. Wolpert
`Clerk of Court
`
`
`
`
`
`
`
`No. 19-4087
`
`Plaintiff Counterclaim Defendant -
`Appellee,
`
`Defendant Counterclaimant -
`Appellant,
`
`CRAFT SMITH, LLC, a California limited
`liability company,
`
`
`
`
`v.
`
`EC DESIGN, LLC, a California limited
`liability company,
`
`
`
`
`and
`
`MICHAELS STORES, INC., a Delaware
`corporation,
`
`
`
`Counterclaim Defendant - Appellee.
`_________________________________
`
`Appeal from the United States District Court
`for the District of Utah
`(D.C. No. 2:16-CV-01235-DB)
`_________________________________
`
`Juliette P. White (Kristine M. Johnson and Alan S. Mouritsen with her on the briefs), of
`Parsons Behle & Latimer, Salt Lake City, Utah, for Defendant Counterclaimant-
`Appellant.
`
`R. Parrish Freeman (Charles J. Veverka and Daniel R. Barber with him on the brief), of
`Maschoff Brennan P.L.L.C., Park City, Utah, for Plaintiff Counterclaim Defendants-
`Appellees.
`
`_________________________________
`
`
`
`
`
`

`

`Before HARTZ, PHILLIPS, and MORITZ, Circuit Judges.
`_________________________________
`
`PHILLIPS, Circuit Judge.
`_________________________________
`
`Since 2007, EC Design, LLC, has been selling its popular personal organizer,
`
`the LifePlanner. In 2015, Craft Smith, Inc., wanting to enter the personal-organizer
`
`market, reached out to EC Design about a possible collaboration. Failing to join
`
`forces with EC Design, Craft Smith, with input from Michaels Stores, Inc., designed
`
`and developed a personal organizer to sell in Michaels stores, leading to this action in
`
`Utah federal district court. EC Design has asserted that the Craft Smith and Michaels
`
`product infringes on the LifePlanner’s registered compilation copyright and
`
`unregistered trade dress. The district court disagreed, granting summary judgment in
`
`favor of Craft Smith and Michaels (collectively, the Appellees) on both issues. On
`
`the copyright issue, the district court concluded that EC Design does not own a valid
`
`copyright in its asserted LifePlanner compilation. Though we disagree with how the
`
`court framed this issue, we affirm because no reasonable juror could conclude that
`
`the allegedly infringing aspects of Appellees’ organizer are substantially similar to
`
`the protected expression in the LifePlanner compilation. On trade dress, the district
`
`court held that EC Design had failed to create a genuine issue of material fact over
`
`whether the LifePlanner’s trade dress had acquired secondary meaning. We agree.
`
`Accordingly, exercising jurisdiction under 28 U.S.C. § 1291, we affirm the
`
`district court’s grant of summary judgment in favor of Appellees on both claims.
`
`
`
`2
`
`

`

`BACKGROUND
`
`EC Design’s LifePlanner
`
`Erin Condren, EC Design’s founder, designed the LifePlanner personal
`
`I.
`
`
`
`organizer to help users better plan their lives. To do so, the LifePlanner provides
`
`users with weekly and monthly calendars, which are color-coded and laid out
`
`helpfully. In addition to the calendars, the LifePlanner has colorful artwork, spaces
`
`for the user to write notes, inspirational quotations, and various other textual
`
`elements, all of which are interspersed throughout the entire planner. All these
`
`features are bound together by a single metal coil and enclosed between plastic-
`
`laminated front and back covers. And every year, users can select a LifePlanner to
`
`their liking from one of EC Design’s many color/art options.
`
`
`
`The LifePlanner contains three labeled sections—introductory, monthly, and
`
`notes.1 The introductory section comprises a notes page, an ownership page, and a
`
`two-page spread of monthly thumbnail calendars. After the thumbnail calendars
`
`comes another two-page spread containing “an inspirational statement spanning the
`
`top of both pages” and six different-colored boxes on each page. App. vol. 18 at
`
`4784. The introductory section ends with a lined page for notes. The monthly section
`
`follows. It contains color-coordinated tabs for each month, inspirational quotations to
`
`start each month, monthly calendars spread over two pages (with space on one side
`
`for notes), weekly calendars (horizontal or vertical layout), and a notes page. The
`
`
`1 This discussion refers specifically to the 2015/2016 LifePlanner—the version
`EC Design asserts Appellees infringed.
`
`
`
`3
`
`

`

`LifePlanner concludes with the notes section, which is signaled by a different color
`
`from the previous months and is labeled “NOTES.” Id. at 4792–93. Several lined,
`
`graphical, and blank pages follow, along with a two-page spread of the next year’s
`
`calendar, with rectangular boxes at the bottom for notes. The notes section concludes
`
`with several pages of stickers, a cutaway folder, and a pocket to place things.
`
`
`
`Though this overall layout has stayed relatively constant, each passing year
`
`brings a variety of changes, distinguishing each year’s LifePlanner from previous
`
`versions. Some changes occur every year—new text/artwork and updated calendars.
`
`Additional changes are made occasionally to the organizer’s fundamental layout and
`
`look. These new offerings often reflect customer surveys, for instance, 2015’s
`
`horizontal weekly calendar layout and hardbound-cover version.
`
`
`
`Through the years, EC Design has registered trademarks in “LifePlanner,”
`
`“Erin Condren,” and the asterisk symbols adorning all its products. For the
`
`LifePlanner specifically, EC Design has registered three copyrights in the 2016/2017
`
`version.2 Only one of those registrations relates to this appeal: U.S. Registration No.
`
`VA 2-072-725 (‘725 Registration), which ties to the “2016/2017 Vertical LifePlanner
`
`
`2 In this appeal, we assume that the registered 2016/2017 LifePlanner is a
`derivative work of the unregistered 2015/2016 LifePlanner, meaning that EC Design
`has satisfied the registration requirement—a statutory prerequisite for bringing a
`copyright-infringement action. See 17 U.S.C. § 411(a); Fourth Estate Pub. Benefit
`Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881, 886 (2019). Because we affirm, we do
`not consider Appellees’ alternative basis for affirming, which argues that EC Design
`failed Fourth Estate’s registration requirement by not registering the 2015/2016
`LifePlanners.
`
`
`
`4
`
`

`

`Compilation.”3 App. vol. 16 at 4214. This registration covers “2-D artwork,
`
`compilation of introductory and section phrases, graphics” and excludes “[c]alendar
`
`arrangement and calendar text.” Id.
`
`II. Craft Smith Enters the Personal-Organizer Market
`
`
`
`In October 2015, Craft Smith took steps towards entering the personal-planner
`
`market.4 At that time, Craft Smith reached out to Michaels—Craft Smith’s biggest
`
`customer—about creating a new spiral-bound organizer that would be “like . . . the
`
`current Erin Condren Life Planner.”5 App. vol. 32 at 8448, 8512. As this comment
`
`
`3 The other two registrations—the “LifePlanner Horizontal Layout
`2016/2017,” U.S. Registration No. VA 2-024-598 and the “LifePlanner Vertical
`Layout 2016/2017,” U.S. Registration No. VA 2-024-599—cover “2-D artwork, Text
`[cover/title page artwork; additional text & artwork throughout calendar].” App. vol.
`14 at 3757 (Horizontal Layout); App. vol. 15 at 3979 (Vertical Layout). But these
`registrations exclude “2-D artwork, Text [functional elements; calendar elements;
`title page text].” App. vol. 14 at 3757 (Horizontal Layout); App. vol. 15 at 3979
`(Vertical Layout). Notably, though the title of each registration contains the word
`“layout,” these registrations do not cover the LifePlanner’s layout. See App. vol. 14
`at 3757; App. vol. 15 at 3979.
`
` 4
`
` Earlier in 2015, Craft Smith and EC Design discussed collaborating on an
`organizer but failed to reach a deal. In addition, in July 2016, EC Design and
`Michaels began discussions about selling the LifePlanner at Michaels. But this too
`ended without a deal. EC Design asserts that its discussions with both Appellees
`allowed them to become “highly familiar” with the LifePlanner to “intentionally
`copy” it. App. vol. 1 at 43.
`
` 5
`
` Per the parties’ request, volumes 31 to 39 of the appendix were filed under
`seal, along with the parties’ opening and response briefs. We respect this request. But
`for sealed material already made public (i.e., by appearing in the published district
`court order), we identify it as needed in this opinion. See Williams v. FedEx Corp.
`Servs., 849 F.3d 889, 905 (10th Cir. 2017) (denying a motion to seal after the parties
`agreed that the “district court’s summary judgment order may now be unsealed, even
`though the order describes and even quotes in it much of the information [the
`Appellant] now seeks to keep under seal”). For example, EC Design has redacted all
`5
`
`
`
`

`

`reflects, Craft Smith sought to emulate the LifePlanner with its own product. For
`
`example, it used a LifePlanner sample to obtain pricing estimates from the
`
`manufacturer. As a result, the manufacturer’s quote to Craft Smith was based on the
`
`LifePlanner’s “size,” “quality of spiral,” and “laminated type cover.”6 Id. at 8508,
`
`8512 (noting that the manufacturer’s quote was “based on everything you see in the
`
`EC planner”). Further, Craft Smith designed its organizer with the same “pagination
`
`and sheet counts” as the LifePlanner. Id. at 8508.
`
`
`
`By April 2016, Michaels agreed to sell Craft Smith’s new organizer in its
`
`stores—called the Recollections Planner. Soon thereafter, Michaels asked Craft
`
`Smith to compare the Recollections Planner with the LifePlanner to ensure that they
`
`were “not too similar.” App. vol. 32 at 8600. In particular, Michaels sought assurance
`
`from Craft Smith that the organizers had different artwork and quotations. Craft
`
`Smith satisfied itself and Michaels that the artwork and quotations sufficiently
`
`differed from EC Design’s, so, according to EC Design, the review led to no changes.
`
`And in October 2016, the Recollections Planner went on sale at Michaels.
`
`
`
`
`the quotations that appear in this paragraph and the next. But this information appears
`in the district court’s order, which is public. See Craft Smith, LLC v. EC Design,
`LLC, 388 F. Supp. 1385, 1393–94 (D. Utah 2019). Moreover, the district court’s
`order is available in volume 30 of the appendix, which is not sealed.
`
` 6
`
` At a deposition, a Craft Smith employee testified that she did not remember
`what brand of organizer was used as a sample to obtain the quote, saying only that
`Craft Smith might have used a LifePlanner or a different brand’s organizer. This
`would be a question of material fact for the jury. For purposes of summary judgment,
`we assume Craft Smith used a LifePlanner.
`6
`
`
`
`

`

`III. Procedural Background
`
`
`
`On November 29, 2016, soon after the Recollections Planner went on sale, EC
`
`Design notified Craft Smith and Michaels that the Recollections Planner infringed the
`
`LifePlanner’s copyright and trade dress. In response, Craft Smith sought a
`
`declaratory judgment in Utah federal district court that it had infringed neither. EC
`
`Design counterclaimed, joining Michaels to the suit and asserting copyright and
`
`trade-dress infringement claims, along with related state-law claims.7 After
`
`discovery, both sides filed motions for summary judgment on the copyright and
`
`trade-dress claims. The district court granted Appellees’ motion on the copyright and
`
`trade-dress claims, denied EC Design’s motion, and declined to exercise
`
`supplemental jurisdiction over EC Design’s state-law claims after disposing of the
`
`federal claims. EC Design timely appealed, challenging the district court’s grant of
`
`summary judgment against its copyright and trade-dress claims.
`
`DISCUSSION
`
`
`
`We review de novo a district court’s grant of summary judgment, using “the
`
`same standard applied by the district court.” Sally Beauty Co. v. Beautyco, Inc., 304
`
`F.3d 964, 971 (10th Cir. 2002) (citation omitted). Summary judgment is appropriate
`
`“if the movant shows that there is no genuine dispute as to any material fact and the
`
`movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “We view
`
`
`7 EC Design first filed its own federal complaint in the Central District of
`California. But the proper venue was the District of Utah, leading EC Design to
`assert its claims against Craft Smith and Michaels as counterclaims in the Utah case.
`7
`
`
`
`

`

`all facts and evidence in the light most favorable to the party opposing summary
`
`judgment.” Blehm v. Jacobs, 702 F.3d 1193, 1199 (10th Cir. 2012) (alteration
`
`omitted) (internal quotation marks and citation omitted).
`
`I.
`
`
`
`Copyright Infringement
`
`Copyright infringement requires that the plaintiff prove two elements: “(1)
`
`ownership of a valid copyright, and (2) copying of constituent elements of the work
`
`that are original.” Id. (quoting Feist Publ’ns Inc. v. Rural Tel. Serv. Co., 499 U.S.
`
`340, 361 (1991)) (internal quotation marks omitted); see also Enter. Mgmt. Ltd., Inc.
`
`v. Warrick, 717 F.3d 1112, 1117 (10th Cir. 2013) (“There are two elements to a
`
`copyright infringement claim; a plaintiff must show both ownership of a valid
`
`copyright, and copying of protectable constituent elements of the work.” (citations
`
`omitted)). This appeal concerns both elements.
`
`
`
`We hold that though EC Design owns a valid copyright in the LifePlanner
`
`compilation (element one), EC Design has failed to raise a genuine issue of material
`
`fact concerning the required substantial similarity between the LifePlanner
`
`compilation’s protected expression and Appellees’ allegedly infringing organizer
`
`(element two). Thus, we affirm the district court’s grant of summary judgment.
`
`
`
`
`
`A.
`
`Element One: Valid Copyright
`
`To meet the first element of a copyright-infringement claim, a plaintiff must
`
`demonstrate ownership of a valid copyright in the allegedly infringed work. See
`
`Blehm, 702 F.3d at 1199; 4 Melville B. Nimmer & David Nimmer, Nimmer on
`
`Copyright § 13.01[A] (2020) [hereinafter Nimmer on Copyright]. Often, a party
`8
`
`
`
`

`

`accomplishes this by producing a certificate of registration from the Copyright
`
`Office. Jacobsen v. Deseret Book Co., 287 F.3d 936, 942 (10th Cir. 2002) (finding
`
`the first element satisfied by a “federally registered copyright” in the accused work);
`
`see also 17 U.S.C. § 410(c) (“In any judicial proceedings the certificate of a
`
`registration . . . shall constitute prima facie evidence of the validity of the copyright
`
`and of the facts stated in the certificate.”).
`
`
`
`In this case, EC Design presented the ‘725 Registration certificate to the
`
`district court. The district court reviewed this certificate and concluded that “because
`
`EC’s asserted compilation seeks much broader protection than the scope outlined on
`
`the 2016-2017 LifePlanner registration certificate [‘725 Registration],” the certificate
`
`did not satisfy element one. App. vol. 30 at 8011. But in reaching this conclusion, the
`
`district court misapplied copyright infringement’s first element, which requires only
`
`the existence of a valid copyright in the allegedly infringed compilation work as a
`
`whole. See, e.g., Feist, 499 U.S. at 361 (“The first element is not at issue here;
`
`[plaintiff]’s directory, considered as a whole, is subject to a valid copyright because
`
`it contains some foreword text, as well as original material in its yellow pages
`
`advertisements.” (citation omitted)). To see why this is so, we look to Feist, which
`
`illustrates this principle.
`
`
`
`In Feist, the defendant copied portions of the plaintiff’s white-pages directory
`
`verbatim, including fake listings inserted to detect copying. Id. at 343–44. In
`
`response, the plaintiff sued for infringement of its compilation copyright in the
`
`directory. Id. at 344. The Supreme Court granted certiorari to decide “whether the
`9
`
`
`
`

`

`copyright in [plaintiff]’s directory protects the names, towns, and telephone numbers
`
`copied by [defendant].” Id. But before reaching this issue, the Court concluded that
`
`the first element of copyright infringement was met, because the plaintiff had
`
`produced its copyright registration and the defendant conceded that the work “as a
`
`whole” was original. Id. at 361. And for a compilation, a valid copyright exists if the
`
`work “as a whole” exhibits “a minimal degree of creativity.”8 Id. at 348, 361; see
`
`also 17 U.S.C. § 103(a) (extending copyright protection to “compilations”); id. § 101
`
`(requiring that a compilation’s originality be judged by looking to the “work as a
`
`whole”); Nimmer on Copyright § 13.01[A] n.5.3 (noting that Feist found element one
`
`satisfied because “the plaintiff’s work as a whole was subject to copyright
`
`protection,” which led the Court to consider “the scope of prohibited copying”—
`
`element two (citing 499 U.S. at 361)). So with element one satisfied, the Feist Court
`
`turned to the real dispute: whether the copying alleged by the plaintiff was prohibited
`
`by copyright law—element two.9 See 499 U.S. at 361–64; see also TransWestern
`
`
`8 In Discussion Section I.B.1, we explain what is required for a compilation to
`obtain copyright protection. We do so there (rather than here) because both EC
`Design and Appellees agree that a valid copyright exists in the LifePlanner
`compilation, which is all that element one requires. But the parties disagree over the
`scope of that copyright. The scope of protection a compilation copyright receives is
`informed by determining which aspects of the LifePlanner compilation render it
`copyrightable, making the inquiry relevant to element two.
`
`9 In fact, most cases concede element one, leaving the dispute over the scope
`of protection afforded by the valid copyright. See, e.g., Feist, 499 U.S. at 361 (“The
`first element is not at issue here[.]”); Savant Homes, Inc. v. Collins, 809 F.3d 1133,
`1138 (10th Cir. 2016) (“The parties do not dispute that Savant owns a valid
`copyright . . . .”); Blehm, 702 F.3d at 1199 (10th Cir. 2012) (“Life is Good does not
`10
`
`
`
`

`

`Pub. Co. v. Multimedia Mktg. Assocs., 133 F.3d 773, 775 (10th Cir. 1998) (“The
`
`second element requires proof that defendants copied plaintiff’s work and that the
`
`elements copied were protected.” (citing Country Kids ‘N City Slicks, Inc. v. Sheen,
`
`77 F.3d 1280, 1284 (10th Cir. 1996))).
`
`
`
`Appellees agree that EC Design possesses a valid compilation copyright in the
`
`LifePlanner.10 See Resp. Br. 32 (“It is important to understand that the district court
`
`did not invalidate EC’s copyright registrations, nor did it declare that nothing about
`
`the LifePlanner could be protectable subject matter under the copyright laws. There
`
`is plenty that is protectable.”). And because element one concerns only the existence
`
`of a valid copyright in the allegedly infringed work, we conclude it is satisfied. Of
`
`course, this does not mean that EC Design wins; rather, it just takes us to the next
`
`step, that is, examining the scope of this valid copyright. “The mere fact that a work
`
`is copyrighted does not mean that every element of the work may be protected.”11
`
`Feist, 499 U.S. at 348. We resolve this issue in element two, which we turn to now.
`
`
`
`
`dispute that Mr. Blehm owns a valid copyright . . . .”); TransWestern, 133 F.3d at
`775 (“Defendants do not seriously contest that plaintiff has a valid copyright . . . .”).
`
`10 In concluding that EC has not satisfied element one of the copyright-
`infringement analysis, Craft Smith follows the district court’s mistaken route.
`
`11 The district court also analyzed the copyrightability of EC Design’s
`“asserted compilation” as part of element one and concluded that the compilation was
`not entitled to copyright protection. The district court erred by analyzing that
`question under element one, because, as explained, the question in element one is
`simply whether a valid copyright exists in the LifePlanner compilation as a whole.
`But the court’s analysis, while improperly framed, helps resolve element two.
`11
`
`
`
`

`

`
`
`
`
`B.
`
`Element Two: Copying of Original Elements
`
`The second element in a copyright-infringement action “consists of two
`
`components.” Savant Homes, Inc. v. Collins, 809 F.3d 1133, 1138 (10th Cir. 2016).
`
`First, the plaintiff must demonstrate factual copying.12 Id. Second, the plaintiff must
`
`show “substantial similarity between the allegedly infringing work and the elements
`
`of the copyrighted work that are legally protected.” Blehm, 702 F.3d at 1199 (internal
`
`quotation marks and citation omitted) (“This second component . . . determines
`
`whether a defendant’s factual copying constitutes actionable infringement.” (citations
`
`omitted)); see also Jacobsen, 287 F.3d at 942 (considering whether “those elements
`
`that were copied were protected” (citation omitted)).
`
`
`
`For the second component, “a court must determine (1) which elements of the
`
`copyrighted work are protectable, and (2) whether these elements are substantially
`
`similar to the accused work.” Savant Homes, 809 F.3d at 1138 (citing Blehm, 702
`
`F.3d at 1200). Summary judgment on this component is proper only “if the
`
`protectable expression in the copyrighted work and the allegedly infringing work is
`
`‘so dissimilar . . . that no reasonable jury could find for the plaintiff on the question
`
`of substantial similarity.’” Blehm, 702 F.3d at 1202–03 (omission in original)
`
`(quoting Sturdza v. United Arab Emirates, 281 F.3d 1287, 1297 (D.C. Cir. 2002))
`
`
`12 As mentioned supra note 6, EC Design contends that Appellees used the
`LifePlanner as a model for the Recollections Planner. Such evidence creates a
`genuine issue of material fact over factual copying. See Nimmer on Copyright
`§ 13.01[B] (“us[ing] the plaintiff’s [product] as a model, template, or inspiration”
`demonstrates factual copying).
`
`
`
`12
`
`

`

`(citing Walker v. Time Life Films, Inc., 784 F.2d 44, 48 (2d Cir. 1986); Twentieth
`
`Century-Fox Film Corp. v. MCA, Inc., 715 F.2d 1327, 1330 (9th Cir. 1983)).
`
`
`
`In this case, EC Design has asserted its compilation copyright in the
`
`LifePlanner. So we review this compilation, along with relevant copyright law, to
`
`“distill the protec[ted]” expression in the LifePlanner compilation. Blehm, 702 F.3d
`
`at 1200. And after identifying the protectable expression contained in the LifePlanner
`
`compilation, we consider whether any of that protected expression is “substantially
`
`similar” to the Recollections Planner.
`
`
`
`
`
`
`
`1.
`
`Step one: Protectable Expression
`
`“Copyright protection subsists . . . in original works of authorship fixed in any
`
`tangible medium of expression[.]” 17 U.S.C. § 102(a). But “[i]n no case does
`
`copyright protection for an original work of authorship extend to any idea . . .
`
`illustrated . . . or embodied in such work.” § 102(b); see also Blehm, 702 F.3d at
`
`1200 (“[Section 102(b)] enshrines the ‘fundamental tenet’ that copyright ‘protection
`
`extends only to the author’s original expression and not to the ideas embodied in that
`
`expression.’” (quoting Gates Rubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d 823,
`
`836 (10th Cir. 1993)) (citing Harper & Row Publ’rs Inc. v. Nation Enter., 417 U.S.
`
`539, 547 (1985); Rogers v. Koons, 960 F.2d 301, 308 (2d. Cir. 1992))).
`
`
`
`Of importance here, copyright protection extends to “compilations,” § 103(a),
`
`which are “work[s] formed by the collection and assembling of preexisting materials
`
`or of data that are selected, coordinated, or arranged in such a way that the resulting
`
`work as a whole constitutes an original work of authorship,” § 101. This definition
`13
`
`
`
`

`

`contains the following three criteria: “(1) the collection and assembly of pre-existing
`
`material, facts, or data; (2) the selection, coordination, or arrangement of those
`
`materials; and (3) the creation, by virtue of the particular selection, coordination, or
`
`arrangement, of an ‘original’ work of authorship.” Feist, 499 U.S. at 357 (discussing
`
`§ 101). The LifePlanner satisfies the first two criteria because (1) it is a “collection
`
`and assembly of preexisting material” and (2) it has been selected, coordinated, and
`
`arranged.
`
`
`
`To satisfy the third criteria, the LifePlanner compilation’s selection,
`
`coordination, and arrangement of preexisting material must be (1) original and (2) a
`
`work of authorship. An original work must be “independently created by the
`
`author . . . and . . . possess[] at least some minimal degree of creativity.” Savant
`
`Homes, 809 F.3d at 1138–39 (quoting Feist, 499 U.S. at 345) (internal quotation
`
`marks omitted). In other words, “[t]he required level of creativity is extremely
`
`low[,]” such that “even a slight amount will suffice.” Id. at 1139 (internal quotation
`
`marks omitted) (quoting Feist, 499 U.S. at 345). For compilations, the requisite
`
`originality comes from the “compiler[’s]” “choices as to selection and arrangement,
`
`so long as they are made independently . . . and entail a minimum degree of
`
`creativity.” Feist, 499 U.S. at 348.
`
`
`
`In addition to originality, the compilation itself must be a work of authorship
`
`under § 102(a). Feist, 499 U.S. at 357–58 (requiring that compilations qualify as a
`
`§ 102(a) “work of authorship”). Here, EC Design contends that the LifePlanner is
`
`both a “literary work,” § 102(a)(1), and a “pictorial, graphic, or sculptural work,”
`14
`
`
`
`

`

`§ 102(a)(5). Opening Br. 35–37. In other words, EC Design contends that its
`
`“LifePlanner compilation is a literary work with graphic elements.” Id. at 36. Thus,
`
`its compilation copyright will protect the original selection and arrangement of the
`
`literary and graphic components contained therein. We identify those components
`
`next to distill the protected expression of the LifePlanner compilation.
`
`A § 102(a)(1) literary work is a “work[], other than audiovisual works,
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`expressed in words, numbers, or other verbal or numerical symbols or indicia,
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`regardless of the nature of the material objects, such as books, . . . in which they are
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`embodied.” § 101. In this case, EC Design argues that the LifePlanner compilation
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`qualifies as a literary work because it contains “preexisting phrases, months, weeks,
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`days, holidays, numbers, and other data and information.” Reply Br. 8. We agree; the
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`LifePlanner’s original selection, coordination, and arrangement of phrases,
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`inspirational quotations, holidays, and other numerical data qualify the LifePlanner
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`compilation as a literary work. Thus, the LifePlanner compilation’s protected
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`expression includes the specific text selected, as it has been originally arranged
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`throughout the LifePlanner.
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`Next, we look to whether the LifePlanner compilation’s protectable expression
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`includes the LifePlanner’s graphic components. Section 102(a)(5) pictorial or graphic
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`works are “two-dimensional . . . works of fine, graphic, and applied art.” § 101.
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`Such works shall include works of artistic craftsmanship insofar as their form
`but not their mechanical or utilitarian aspects are concerned; the design of a
`useful article . . . shall be considered a pictorial [or] graphic . . . work only if,
`and only to the extent that, such design incorporates pictorial [or] graphic . . .
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`features that can be identified separately from, and are capable of existing
`independently of, the utilitarian aspects of the article.
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`Id. A “useful article” has “an intrinsic utilitarian function that is not merely to portray the
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`appearance of the article or to convey information.” Id. If an item is a “useful article,” we
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`decide whether its pictorial or graphic features can be separated from it, by employing the
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`following test:
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`[A] feature incorporated into the design of a useful article is eligible for
`copyright protection only if the feature (1) can be perceived as a two- or
`three-dimensional work of art separate from the useful article and (2)
`would qualify as a protectable pictorial, graphic, or sculptural work—
`either on its own or fixed in some other tangible medium of expression—
`if it were imagined separately from the useful article into which it is
`incorporated.
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`Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002, 1007 (2017).
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`Here, EC Design contends that the LifePlanner’s “banners, color schemes, and
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`two-dimensional artwork and design” render the LifePlanner a work of authorship
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`under § 102(a)(5). Reply Br. 5; see also Opening Br. 48 (referencing the
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`LifePlanner’s “2-D artwork and graphics” as those that qualify for copyright
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`protection). We need not decide whether the LifePlanner is a useful article regarding
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`these graphics, because, even if it were, the banners, two-dimensional artwork, and
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`color schemes can easily be viewed “separate from” the LifePlanner as required by
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`Star Athletica.13 This renders those graphical components copyrightable elements of
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`13 We question whether the calendar elements can be viewed “separate[ly]
`from” the LifePlanner. But because EC Design does not argue that those are part of
`the LifePlanner’s work of authorship, we need not decide that. For similar reasons,
`this helps explain why we need not consider whether the LifePlanner is a useful
`article.
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`the overarching compilation. In fact, Appellees agree that the LifePlanner’s two-
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`dimensional “art is separable” and conclude that the art contained in the LifePlanner
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`qualifies as a work of authorship (they contend this does not matter, because these
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`components of the LifePlanner were not copied). Resp. Br. 36. Thus, the LifePlanner
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`compilation’s protectable expression includes—in addition to textual elements—its
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`original selection and arrangement of the specific two-dimensional artwork and
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`graphics contained therein.
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`Before moving to the substantial-similarity test, however, it is important to
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`keep in mind what is not included in the LifePlanner’s protectable expression.
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`Because a compilation copyright arises from “the selection, coordination, and/or
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`arrangement of specific content,” its protectable expression is “limited to the
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`selection, coordination, and/or arrangement of that specific content, and [does] not
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`apply to the format and layout itself.” U.S. Copyright Office, Compendium of U.S.
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`Copyright Office Practices § 313.3(E) (3d ed. 2017) (emphasis added) [hereinafter
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`Compendium].14 To grant further protection would violate § 102(b)’s dictate that
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`14 “[T]he Compendium is a non-binding administrative manual that at most
`merits [Skidmore] deference . . . .” Georgia v. Public.Resource.Org, Inc., 140 S. Ct.
`1498, 1510 (2020) (referring to Skidmore v. Swift & Co., 323 U.S. 134 (1944)). Thus,
`we “follow it only to the extent it has the power to persuade.” Id. (quoting Skidmore,
`323 U.S. at 140) (internal quotation marks omitted). Here, we find section 313.3[E]
`persuasive, because of the statutory direction that copyright law extends not to ideas,
`but to expression. Granting copyright protection to the layout and format of a
`compilation would extend copyright to the ideas contained in methods of laying out
`or formatting information. Doing so would impermissibly expand the scope of such
`copyright law beyond the actual expression used (meaning, the specific content found
`in the work). And because a compilation’s original expression comes from the
`selection, coordination, and arrangement of the specific content expressed, that
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`copyright law does not protect ideas. And because a compilation copyright protects
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`the selection and arrangement of the specific content used (its expression), “[t]he
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`protection available for a compilation is ‘thin.’” TransWestern, 133 F.3d at 776
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`(quoting Feist, 499 U.S. at 349).
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`In sum, the LifePlanner’s protectable expression consists of the selection,
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`coordination, and arrangement of the specific literary and graphic components that
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`make up the LifePlanner as a whole.15
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`2.
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`Step two: Substantial Similarity
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`Having identified the LifePlanner compilation’s protected expression, we now
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`ask whether that expression is “substantially similar to the accused work.” Savant
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`Homes, 809 F.3d at 1140 (internal quotation marks omitted) (quoting Blehm, 702
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`F.3d at 1202). “Substantial similarity exists when ‘the accused work is so similar to
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`the plaintiff’s work that an ordinary reasonable person would conclude that the
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`defendant unlawfully appropriated the plaintiff’s [protectable] expression by taking
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`material of substance and value.’” Id. (alteration in origina