Case 5:05-cv-01581-SMH-MLH Document 88 Filed 02/01/08 Page 1 of 21 PageID #: 1165
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF LOUISIANA
`SHREVEPORT DIVISION
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`JAYN ROBISON
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`VERSUS
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` CIVIL ACTION NO. 05-1581
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` JUDGE S. MAURICE HICKS, JR.
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`CARDIOLOGY ASSOCIATES, L.L.C.
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` MAGISTRATE JUDGE HORNSBY
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`MEMORANDUM RULING
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`Before the Court are a Motion for Summary Judgment filed by Defendant Cardiology
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`Associates, L.L.C. (Record Document 63) and two Motions for Partial Summary Judgment
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`filed by Plaintiff Jayn Robison (Record Documents 64 and 65). Cardiology Associates,
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`L.L.C. (“Cardiology Associates”) moves for summary judgment, arguing that Plaintiff Jayn
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`Robison (“Robison”) possesses no valid copyright because (1) the collection letters at issue
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`are not subject to copyright, and (2) she failed to provide proper notice of copyright when
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`she used the letters in the 1970s. Conversely, Robison moves for partial summary
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`judgment on the issues of originality and copying, maintaining that (1) her collection letters
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`contain the minimum degree of creativity required to satisfy the originality standard, and
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`(2) Cardiology Associates copied her letters within the meaning of 17 U.S.C. § 106. For
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`the reasons which follow, Cardiology Associates’ Second Motion for Summary Judgment
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`(Record Document 63) is DENIED; Robison’s Motion for Partial Summary Judgment with
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`Regard to Copying (Record Document 64) is GRANTED IN PART AND DENIED IN PART;
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`and Robison's Motion for Partial Summary Judgment with Regard to Originality (Record
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`Document 65) is GRANTED.
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`FACTUAL BACKGROUND
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`In September 1990, Robison registered a series of collection letters with the United
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`Case 5:05-cv-01581-SMH-MLH Document 88 Filed 02/01/08 Page 2 of 21 PageID #: 1166
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`States Copyright Office and obtained a Certificate of Registration (“certificate”). See
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`Record Document 63, Exhibit J. On the certificate, Robison listed 1986 as the year in
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`which creation of the work was completed. See id. She did not complete the lines
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`designated for date of first publication. See id. These lines were to be completed only if
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`the work had been published. See id. These copyrighted letters are now the subject of
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`the instant action for copyright infringement. The letters are attached to Robison’s
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`complaint and are also exhibits in the summary judgment record. See Record Document
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`1, Exhibit A; Record Document 65, Exhibit A.
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`Based on Robison’s deposition testimony, Cardiology Associates contends that she
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`drafted and published the letters at issue in the 1970s while employed with Hollier & Marks,
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`a medical group. See Record Document 8, Exhibit I at 29-30. This time frame is well
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`before the 1986 date reflected in the certificate and the 1990 copyright date. However, in
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`her deposition, Robison also stated that the letters she copyrighted in 1990 were created
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`in 1986. See id., Exhibit I at 28. Likewise, in a later filed affidavit, Robison attested that
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`the copyrighted letters were not in existence when she worked for Hollier & Marks and that
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`she did not publish the letters prior to the time she filed her copyright application. See
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`Record Document 67, Exhibit 2. Below are pertinent excerpts of Robison’s deposition:
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`Q.
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`A.
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`Q.
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`A.
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`Q.
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`Let’s go through some of the allegations of that complaint. . . . Okay.
`This lawsuit revolves around a series of letters that you have allegedly
`written; is that correct?
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`That is correct.
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`When did you write those letters? When did you create those letters?
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`1986.
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`When in 1986, do you recall?
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`Case 5:05-cv-01581-SMH-MLH Document 88 Filed 02/01/08 Page 3 of 21 PageID #: 1167
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`A.
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`Q.
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`No, I don’t.
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`And just –
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`MR. BENSON: I want her to rely on her memory right now.
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`BY MR. BENSON:
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`Q.
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`Q.
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`A.
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`Q.
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`A.
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`Q.
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`A.
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`Q.
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`A.
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`Q.
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`A.
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`Q.
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`A.
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`Q.
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`A.
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`Q.
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`Ms. Robison, if you would don’t refer to any materials. . . .
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`. . . So sometime in 1986. Was it when you were working for LIG or
`after that?
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`It could have been before, it could have been after, I do not know.
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`Okay. What prompted you to write these letters, to draft these letters?
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`For the purpose to help – I had drafted the letters before then, and I
`had used them.
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`Well, hold on. I asked you a minute ago when you created these
`letters and you told me 1986; is that not correct?
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`Formally 1986.
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`My question –
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`Then I don’t know, a period of years before that I have been drafting
`working on them, so as far as giving you an exact date I cannot give you that.
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`Can you give me an approximate date?
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`In the ‘80s.
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`Early ‘80s?
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`I'm sorry, I just don't have a date for you. I can’t pull one out.
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`So you drafted these letters after you worked for Hollier and Marks,
`correct?
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`I used them while there, so it had to have been before then.
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`So you drafted these letters in the ‘70s?
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`A.
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`Q.
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`A.
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`Q.
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`A.
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`Q.
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`A.
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`Q.
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`A.
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`No.
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`Okay. Well, follow me. Didn’t you cease employment with Hollier and
`Marks in 1980?
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`Okay. I see. Yes, it would have been the ‘70s.
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`When you wrote these letters, were you employed with Hollier and
`Marks?
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`I was.
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`Did you write these letters to help Drs. Hollier and Marks collect their
`accounts receivable?
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`I wrote them for my own personal use and satisfaction.
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`You didn’t – did you use them in your employ with Hollier and Marks?
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`Yes.
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`Record Document 8, Exhibit I at 28-30. Further, Cardiology Associates claims that
`1
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`Robison used the letters in the 1970s without placing the appropriate copyright notice on
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`them. It also argues that Robison falsely swore on the application for registration of
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`copyright that the letters were created in 1986 when, in fact, they were created in the
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`1970s.
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`In September 2001, Robison was hired by Cardiology Associates as an
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`administrator/office manager. See id., Exhibit I at 16. Dr. Ralph Baucum served as her
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`supervisor. See id., Exhibit I at 17. During this employment, Robison placed one or more
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`of her collection letters into Cardiology Associates’ billing computer software. See id.,
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`Exhibit I at 39-40. According to Robison, she advised Cardiology Associates that her
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`This exchange occurred at pages 28-30 of the deposition transcript. Finally, on
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`page 48 of the transcript, defense counsel showed Robison “these letters” and handed her
`a copy of the complaint and attachments. Record Document 8, Exhibit I at 48.
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`Case 5:05-cv-01581-SMH-MLH Document 88 Filed 02/01/08 Page 5 of 21 PageID #: 1169
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`letters were copyrighted at this time. See id., Exhibit I at 40. Cardiology Associates used
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`Robison’s collection letters in the course of its collection efforts and such use was with
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`Robison’s knowledge and consent. See id.
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`On Friday, April 30, 2004, Cardiology Associates terminated Robison. See id.,
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`Exhibit I at 16. Shortly after her termination, Robison requested that Cardiology Associates
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`stop using her collection letters. See id., Exhibit I at 43-44. Cardiology Associates agreed
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`to this request. See id., Exhibit I at 44. According to Robison, she called Dr. Baucum of
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`Cardiology Associates on the Monday following her termination and requested that
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`Cardiology Associates stop using her letters and return hard copies of her letters that she
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`had left in her office. See id., Exhibit I at 43. Dr. Baucum confirms this phone call, but can
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`only place it to within a month of Robison’s termination. See Record Document 64, Exhibit
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`A at 20. Notwithstanding, there is no dispute that Robison requested that Cardiology
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`Associates cease using her collection letters sometime in May 2004. Despite such
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`request, Cardiology Associates did not contact its computer service about changing its
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`collection letters until September 2004. See id., Exhibit C & Exhibit D at 21-23.
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`Between May 2004 and January 2005 and subsequent to Robison’s request to stop
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`using her collection letters, Cardiology Associates distributed at least eight six collection
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`letters to its delinquent accounts. See Record Document 64-3 at ¶ 5. The only collection
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`letters on Cardiology Associates’ computer system during this time frame are contained
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`in the record at Record Document 64, Exhibit E. See id. at ¶ 6. Cardiology Associates
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`admits that the letters contained in Exhibit E are the letters it sent out to its patients
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`between May 2004 and January 2005. See id. at ¶ 7. Robison maintains that the letters
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`contained in Exhibit E are substantially similar to two of her collection letters, which are
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`Case 5:05-cv-01581-SMH-MLH Document 88 Filed 02/01/08 Page 6 of 21 PageID #: 1170
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`contained in the record at Record Document 64, Exhibit F.
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`PROCEDURAL BACKGROUND
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`On September 5, 2005, Robison filed the instant action against Cardiology
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`Associates alleging copyright infringement. See Record Document 1. Cardiology
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`Associates filed its answer on September 16, 2005, denying the allegations set forth in the
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`complaint and asserting defenses. See Record Document 5. Cardiology Associates filed
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`a first motion for summary judgment. See Record Document 8. The Court denied the
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`motion, finding that summary judgment was not appropriate at that stage of the litigation
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`because there was insufficient clarity of fact on issues material to the case. See Record
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`Document 21. The Court noted that further discovery may resolve some of the factual
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`disputes in this case. See id. The instant motion for summary judgment and motions for
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`partial summary judgment were filed on October 31, 2007. See Record Document 63-65.
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`I.
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`Summary Judgment Standard.
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`LAW AND ANALYSIS
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`Summary judgment is proper pursuant to Rule 56 of the Federal Rules of Civil
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`Procedure “if the pleadings, depositions, answers to interrogatories, and admissions on file,
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`together with the affidavits, if any, show that there is no genuine issue as to any material
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`fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp.
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`v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986). “Rule 56(c) mandates the
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`entry of summary judgment, after adequate time for discovery and upon motion, against
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`a party who fails to make a showing sufficient to establish the existence of an element
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`essential to that party’s case, and on which that party will bear the burden of proof at trial.”
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`Case 5:05-cv-01581-SMH-MLH Document 88 Filed 02/01/08 Page 7 of 21 PageID #: 1171
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`Stahl v. Novartis Pharm. Corp., 283 F.3d 254, 263 (5th Cir. 2002). If the movant
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`demonstrates the absence of a genuine issue of material fact, “the nonmovant must go
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`beyond the pleadings and designate specific facts showing that there is a genuine issue
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`for trial.” Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir. 2001). Where
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`critical evidence is so weak or tenuous on an essential fact that it could not support a
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`judgment in favor of the nonmovant, then summary judgment should be granted. See
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`Alton v. Tex. A&M Univ., 168 F.3d 196, 199 (5th Cir. 1999).
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`II.
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`Copyright Infringement.
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`For Robison to prevail on her claim of copyright infringement, she must show (1)
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`ownership of a valid copyright and (2) unauthorized copying. See Peel & Co., Inc. v. The
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`Rug Market, 238 F.3d 391, 394 (5th Cir. 2001). Cardiology Associates has moved for
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`summary judgment based on the first element, ownership of a valid copyright. Robison
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`has moved for partial summary judgment on the issues of originality, one requirement of
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`a valid copyright, and copying. The Court will now examine the two elements of copyright
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`infringement separately.
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`A.
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`Ownership of a Valid Copyright.
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`“Ownership of a valid copyright is established by proving the originality and
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`copyrightability of the material and compliance with the statutory formalities.” Norma
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`Ribbon & Trimming, Inc. v. Little, 51 F.3d 45, 47 (5th Cir. 1995) (internal citations omitted).2
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`“Plaintiff’s ownership . . . breaks down into the following constituent parts: (1)
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`originality in the author; (2) copyrightability of the subject matter; (3) a national point of
`attachment of the work . . .; (4) compliance with applicable statutory formalities; and (5) (if
`plaintiff is not the author) a transfer of rights or other relationship between the author and
`the plaintiff so as to constitute the plaintiff as the valid copyright claimant.” 4-13 Nimmer
`on Copyright § 13.01 (2007). Constituent parts 3 and 5 are not pertinent to the instant
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`“Plaintiff bears the burden of proof on the prima facie case, and Defendant bears the
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`burden as to defense.” 3-12 Nimmer on Copyright § 12.11. Title 17 U.S.C. § 410(c)
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`provides:
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`In any judicial proceedings the certificate of a registration made before or
`within five years after first publication of the work SHALL constitute prima
`facie evidence of the validity of the copyright and of the facts stated in
`the certificate. The evidentiary weight to be accorded the certificate of a
`registration made thereafter shall be within the discretion of the court.
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`17 U.S.C. § 410(c) (emphasis added). While the certificate constitute prima facie evidence
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`of the validity of the copyright and of the facts stated in the certificate, the presumption is
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`rebuttable. Norma Ribbon & Trimming, Inc., 51 F.3d at 47.
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`In this case, Robison has presented her certificate, stating that 1986 was the “year
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`in which creation of [her] work was completed” and that her work had not been published.
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`See Record Document 63, Exhibit K. The Court must accept Robison’s certificate as prima
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`facie evidence of the validity of the copyright, including originality, copyrightability, and
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`compliance with statutory formalities. Further, the Court must also accept the certificate
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`as prima facie evidence that Robison created the letters in 1986 and had not published the
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`letters as of 1990, both of which are facts contained in the certificate. The Court will now
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`determine whether Cardiology Associates has rebutted the Section 410(c) presumption.3
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`matter.
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`Relying on Robison’s deposition testimony regarding use of collection letters in the
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`1970s, Cardiology Associates argues that “since plaintiff published these letters more than
`five years before she registered them with the Copyright Office, she is not entitled to any
`presumption of validity under the Copyright Act.” Record Document 63-2 at 23. Yet, as
`noted above, Robison stated in her certificate that she created the letters in 1986 and had
`not published the letters as of the date of her copyright application in 1990. The Court
`must accept the certificate as prima facie evidence of these facts. Cardiology Associates’
`contention that the letters were created and published in the 1970s will be entertained in
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`1.
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`Originality.4
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`Robison’s certificate is prima facie evidence for everything it contains, including the
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`fact that she authored the letters. Thus, the burden shifts to Cardiology Associates to
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`demonstrate that she copied from prior sources and was not original. See 3-12 Nimmer
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`on Copyright § 12.1. If Cardiology Associates offers such proof, then the burden shifts to
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`Robison to overcome that evidence. See id. However, it is not “sufficient for [Cardiology
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`Associates] to offer evidence of prior similar works in the absence of evidence that
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`[Robison actually] copied from such works.” Id.
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`Originality “means only that the work was independently created by the author (as
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`opposed to copied from other works), and that it possesses at least some minimal degree
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`of creativity.” Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340,
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`345, 111 S.Ct. 1282, 1287 (1991). Courts have held that “the requisite level of creativity
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`is extremely low; even a slight amount will suffice” and most works “make the grade quite
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`easily, as they possess some creative spark, no matter how crude, humble or obvious it
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`might be.” Id. Most importantly, the Feist court distinguished originality and novelty:
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`Originality does not signify novelty; a work may be original even though it
`closely resembles other works so long as the similarity is fortuitous, not the
`result of copying. To illustrate, assume that two poets, each ignorant of the
`other, compose identical poems. Neither work is novel, yet both are original
`and, hence, copyrightable.
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`Id. at 345-346, 111 S.Ct. 1287-1288.
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`To disprove originality, Cardiology Associates argues that Robison copied from
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`the Court’s analysis of whether Cardiology Associates has rebutted the Section 410(c)
`presumption.
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`4
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`The Court is entertaining cross motions for summary judgment on originality.
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`earlier letters in the public domain, that she added nothing of any significance to the
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`collection letters already existing in the public domain, and that her letters do not contain
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`any ideas, but rather are tools used to attempt to collect debts. 5
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`Again, Robison’s letters are contained in Record Document 65, Exhibit A. From her
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`deposition testimony, it is clear that Robison had read other collection letters. But with her
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`letters, she sought to create collection letters that achieved the goal of collecting the
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`account, but were also sympathetic, unoffending, cooperative, and non-threatening. See
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`Record Document 8, Exhibit I at 49-50. According to Robison, she was “trying to give the
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`patients options without making them feel threatened.” Id., Exhibit I at 51. In the letters,
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`Robison expressed that the account is now due, we realize that you (the patient) have
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`hardships, we realize that real life happens, and we are willing to work with you to settle
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`the account. See id., Exhibit I at 49. Robison sought to achieve these goals with her
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`terminology and phraseology. See id., Exhibit I at 57. Phrases from her letters include:
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`•
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`•
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`•
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`We regret having to take these measures and have tried working with
`you in order to clear this account.
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`We can at this time still make financial arrangements with you to clear
`the account and cancell [sic] legal procedures.
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`It is my intent to work with you and to set up a payment schedule that
`is reasonable and financially accepted to you. I do not want to cause
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`This final argument is easily dispelled. Robison’s letters clearly and concisely
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`convey numerous ideas: an assertion that the recipient owes money to the sender; a
`request for payment; a non-threatening and cooperative approach to the debtor; and a
`threat of action adverse to the debtor if payment is not forthcoming. See Record
`Document 73, Exhibit A. Further, defense expert Dr. Perlman identified fifteen separate
`ideas in Robison’s letters. See Record Document 80, Exhibit A at 14-18. Robison is not
`claiming a copyright in these ideas, but rather in the particular way that she expressed the
`ideas in her letters – that is, the actual language that she used, which is subject to
`copyright. See Mazer v. Stein, 347 U.S. 201, 217, 74 S.Ct. 460, 470 (1954).
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`any undo [sic] financial stress however this account needs to be taken
`care of.
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`•
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`Your account has been presented to me in order to try to establish [a]
`payment plan suitable to you and your financial obligations in order to
`clear the account.
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`Record Document 65, Exhibit A.
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`a.
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`Independent Creation by the Author.
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`Robison has consistently testified that she independently created the letters.
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`Likewise, defense expert Dr. Alan Perlman, a Ph.D. in the field of linguistics, testified in his
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`deposition that he did not believe that Robison’s letters were directly copied because he
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`did not see “specific and point-for-point similarities in the actual wording.” Record
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`Document 65, Exhibit D at 21-22.
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`Cardiology Associates has come forward with no competent summary judgment
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`evidence that Robison copied her letters from earlier letters. It is attempting to establish
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`that Robison copied from the public domain by arguing that her works are substantially
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`similar to works in the public domain. Such an inferential attack on originality appears to
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`be permissible. See Boisson v. Banian, Ltd., 273 F.3d 262, 269-270 (2nd Cir. 2001)(noting
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`that scholars disagree whether inferential proof of copying by the copyright holder is
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`permissible and declining to decide the issue in view of the defendant’s lack of evidence).
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`Under the case law, the necessary access must have taken place prior to the time Robison
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`created her work. The Boisson court reasoned:
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`Defendants also failed to show that [public domain works] similar to
`[Plaintiff's work] were so widely disseminated or known as to infer that
`Boisson reasonably would have seen one before designing her own works.
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`Boisson, 273 F.3d at 270.
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`In our case, the only alleged pubic domain letters identified by Cardiology
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`Associates are contained in Exhibit L of Record Document 63. A cursory review of the
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`letters reveals that the language appears to be dissimilar to Robison’s letters.
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`Notwithstanding, the public domain letters are the result of a Google.com search and
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`Cardiology Associates has provided no competent summary judgment evidence as to
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`when the letters contained in Exhibit L were created. Some of the public domain letters
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`contain no date; some are dated October 29, 2007, presumably the date the Google.com
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`search was run; and others are dated 2003 or 2004. Thus, there is no way to determine
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`if these public domain letters were even in existence prior to Robison’s creation of her
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`letter, whether the creation occurred in the 1970s or in 1986. Further, there is no record
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`evidence as to the content of the public domain as it existed prior to the creation of
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`Robison’s letters. Without proof that Robison copied from public domain letters, the mere
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`existence of similar works cannot defeat the originality of Robison’s letters. See Feist
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`Publications, 499 U.S. at 345-46; 111 S.Ct. at 1287-1288; Boisson, 273 F.3d at 270-271.
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`Cardiology Associates also relies heavily upon Fifth Circuit case law for the principle
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`that “originality . . . means that the material added to what is in the public domain must
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`have aspects of novelty and be something more than a trivial addition or variation. If what
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`is added does not itself give some value to a public domain composition, or serve some
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`purpose other than to merely emphasize what is present and subsisting in the pubic
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`domain, it is not entitled to copyright.” Donald v. Zack Meyer’s T.V. Sales and Service, 426
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`F.2d 1027, 1030 (5th Cir. 1970); see also Norma Ribbon & Trimming, Inc. v. Little, 51 F.3d
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`45, 47 (5th Cir. 1995) (“[A] work may be protected by copyright even though it is based on
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`. . . something already in the public domain if the author, through his skill and effort, has
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`contributed a distinguishable variation from the older works. However, a ‘distinguishable
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`variation’ must be substantial and not merely trivial.”). These cases are easily
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`distinguishable. In Donald, the court concluded that the plaintiff’s form contracts were
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`insufficiently original to merit copyright protection. Yet, this determination was based on
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`an examination of the plaintiff’s forms and specific earlier works. Donald, 426 F.2d at
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`1029. In Little, the court was able to compare the alleged infringing ribbon flowers with the
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`ribbon flowers that already existed in the public domain and concluded that there was
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`nothing new in the design of the flowers themselves. Little, 51 F.3d at 48. In our case, as
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`discussed in much greater detail above, this Court is unable to compare Robison’s letters
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`with specific earlier works that existed in the public domain prior to the creation of her
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`letters.
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`b.
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`Minimal Degree of Creativity.
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`Cardiology Associates contends that Robison’s deposition testimony establishes
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`that her letters lack creativity. During her deposition, Robison was repeatedly asked what
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`made her letters different from any other collection letter; what novelty or originality did her
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`thought process add to the letters; and what about the letters was novel. First, many of
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`these questions go to novelness and the Feist court clearly held that originality does not
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`require a showing of novelty. See Feist Publications, Inc., 499 U.S. at 345; 111 S.Ct. at
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`1287. Moreover, Robison’s answers to this line of questioning demonstrate what is original
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`about her letters – the phraseology and expression of the collection concepts contained
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`in the letters. See Mason v. Montgomery Data, Inc., 967 F.2d 135, 138 (5th Cir. 1992)
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`(discussing the idea/expression merger doctrine). It is true that the concept contained in
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`her letters is contained in all collection letters – you owe money, we would like to work with
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`you, but if you do not pay we will sue. Yet, Robison is not claiming a copyright in the
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`concept, but rather her expression of that concept. See Mazer v. Stein, 347 U.S. 201, 217,
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`74 S.Ct. 460, 470 (1954). Her expression of the collection concept was meant to be
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`sympathetic, unoffending, cooperative, and non-threatening. Again, she was “trying to give
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`the patients options without making them feel threatened.” Record Document 8, Exhibit
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`I at 51. Cardiology Associates cannot defeat Robison’s copyright by its allegation that the
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`ideas and concepts in Robison’s letters can be found in earlier public domain letters. See
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`Kamar International, Inc. v. Russ Berrie & Co., 657 F.2d 1059, 1061 (9th Cir. 1981). The
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`copying of an idea but not of its expression does not constitute infringement. See 3-12
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`Nimmer on Copyright § 12.11 n. 51.3. Likewise, the copying of the idea but not the
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`expression from a prior work does not derogate from originality. See id.
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`Here, the particular way that Robison chose to express her ideas, no matter if those
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`ideas were in the public domain, is original to her. It required some degree of creativity on
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`her part to select the language, terminology, and phraseology that she used to express
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`those ideas. This expression is what plaintiff sought to protect via copyright. Even Dr.
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`Perlman, the defense expert, stated that Robison’s letters “contained . . . some degree of
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`creativity in the phraseology of the content of [the] letters” and that the author of such
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`letters exhibited “at least a minimal degree of creativity” in creating the letters. Record
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`Document 65, Exhibit D at 89-90.
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`Based on the foregoing, this Court finds that Cardiology Associates has not come
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`forward with enough evidence to rebut the Section 410(c) presumption with respect to
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`originality. Cardiology Associates has failed to come forward competent summary
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`judgment evidence establishing the content of the public domain as it existed prior to the
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`Page 14 of 21
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`Case 5:05-cv-01581-SMH-MLH Document 88 Filed 02/01/08 Page 15 of 21 PageID #: 1179
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`creation of Robison’s letters or that Robison copied from such public domain letters.
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`Moreover, in light of the terminology and phraseology of Robison’s letters which expressed
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`a sympathetic, unoffending, cooperative, and non-threatening collection concept,
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`Cardiology Associates has not come forward with evidence to defeat the presumption that
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`Robison’s letters contained at least some minimal degree of creativity. Summary judgment
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`in favor of Robison on the issue of originality is granted.
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`2.
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`Copyrightability.
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`It is clear from a review of the Second Motion for Summary Judgment that
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`Cardiology Associates seeks summary judgment on the issue of originality. Yet, a similar
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`request on the issue of copyrightability is not so apparent. At times, it appears that
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`Cardiology Associates has merged the elements of originality and copyrightability. See
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`Record Document 63-2 18-19. In its motion, Cardiology Associates states:
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`It is undisputed that plaintiff has registered what purports to be a
`copyright of these letters with Copyright Office. However, the Copyright
`Office can register only works where “the material deposited constitutes
`copyrightable subject matter.” 17 U.S.C. § 410(a). That issue is a question
`of law for this Court to decide. 1 M. Nimmer, Copyright § 12[10][B][3]
`(1973); Hoehling v. Universal City Studios, Inc., 618 F.2d 972, (2nd Cir.),
`cert. denied, 449 U.S. 841, 66 L. Ed. 2d 49, 101 S. Ct. 121 (1980).
`Simply put, plaintiff’s purportedly copyrighted letters are nothing more
`than standard, run-of-the-mill collection letters. Plaintiff is attempting to
`copyright something that has been in the public domain for decades and to
`which she has added nothing new, original, or novel. This exercise of
`judgment and discretion by the plaintiff (or, more specifically, the lack
`thereof) is not the type of “original work” that is intended to be protected by
`the Copyright Act.
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`Id. at 19. The Court construes this argument as Cardiology Associates’ request for
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`summary judgment on the issue of copyrightability.
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`Title 17 U.S.C. § 410(a) states that “when, after examination, the Register of
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`Page 15 of 21
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`Case 5:05-cv-01581-SMH-MLH Document 88 Filed 02/01/08 Page 16 of 21 PageID #: 1180
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`Copyrights determines that, in accordance with the provisions of this title, the material
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`deposited constitutes copyrightable subject matter and that the other legal and formal
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`requirements of this title have been met, the Register shall register the claim and issue to
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`the applicant a certificate of registration.” 17 U.S.C. § 410(a) (emphasis added). Under
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`Section 410(a), the Copyright Office conducts “a substantive examination within its
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`particular expertise to determine validity: whether the work falls within the subject matter
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`of copyright.” 3-12 Nimmer on Copyright § 12.11. Further, the statute clearly states that
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`a certificate will be issued only if the material deposited constitutes copyrightable subject
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`matter. Robison was issued such a certificate in 1990. Thus, there is not only the Section
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`410(c) presumption in place, but also a strong indication that the Copyright Office
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`determined that Robison’s collection letters were copyrightable subject matter.
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`The Court considered, and ruled on, Cardiology Associates’ argument that the
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`copyrighted letters are standard, run-of-the-mill collection letters in its analysis of the
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`originality issue. Yet, in the context of copyrightability, Cardiology Associates’ bare
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`assertions are simply not enough to carry their burden of rebutting the statutory
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`presumption of validity on the issue of copyrightability. Cardiology Associates has offered
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`no proof to overcome the presumption and/or the Copyright Office’s determination that
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`Robison’s collection letters were copyrightable. Accordingly, summary judgment in favor
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`of Cardiology Associates on the issue of copyrightability must be denied.
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`3.
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`Compliance with Statutory Formalities.
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`Again, under Section 410(c), there is a presumption in favor of Robison that she has
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`complied with all statutory formalities, including notice formalities under 17 U.S.C. §
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`Page 16 of 21
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`405(a). Cardiology Associates may rebut this presumption by showing, for example, that
`6
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`she did not register her work within five years after first publication. See Broadcast Music,
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`Inc. v. Rockingham Venture, Inc., 909 F.Supp. 38, 43 (D.N.H.1995). Based on the
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`deposition testimony set forth in the factual background section of the instant
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`Memorandum Ruling, Cardiology Associates contends that Robison’s letters were
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`published in the 1970s, thereby placing the letters in the public domain without proper
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`copyright notice and invalidating any copyright protection. See 17 U.S.C. § 405(a).
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`17 U.S.C.A. § 405 states:
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`6 (
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`a)
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`Effect of Omission on Copyright.–With respect to copies and
`phonorecords publicly distributed by authority of the copyright owner
`before the effective date of the Berne Convention Imp