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Case 2:23-cv-10401-PDB-EAS ECF No. 28, PageID.244 Filed 10/12/23 Page 1 of 19
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`
`
`
`
`Plaintiff,
`
`
`Case No. 23-cv-10401
`
`Paul D. Borman
`United States District Judge
`
`
`
`SNAGPOD, LLC,
`
`
`
`
`
`
`
`v.
`
`PRECISION KIOSK TECHNOLOGIES,
`INC.
`
`
`
`
`Defendants.
`
`
`
`_________________________________/
`
`ORDER GRANTING DEFENDANT’S MOTION FOR JUDGMENT ON
`THE PLEADINGS (ECF No. 22)
`
`
`
`
`
`
`
`INTRODUCTION
`
`In this action, Plaintiff SnagPod LLC (“SnagPod”) asserts claims against
`
`Defendant Precision Kiosk Technologies, Inc. (“PKT”) for copyright infringement
`
`of their various breathalyzer, alcohol testing, and kiosk technologies under 17 U.S.C.
`
`§ 501. Now before the Court is Defendant PKT’s Motion for Judgment on the
`
`Pleadings Pursuant to Fed. R. Civ. P. 12(c) (ECF No. 22). On Wednesday October
`
`11, 2023, the Court held a hearing on Defendant’s motion.
`
`
`
`
`
`1
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`

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`Case 2:23-cv-10401-PDB-EAS ECF No. 28, PageID.245 Filed 10/12/23 Page 2 of 19
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`I. STATEMENT OF FACTS
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`The facts as alleged by Plaintiff SnagPod are as follows. In 2009, SnagPod,
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`an alcohol and drug testing company, developed breathalyzer, alcohol testing, and
`
`kiosk technologies (collectively, “the SnagPod Software”) designed to assist
`
`Probation Officers in monitoring their clients. (ECF No. 1, PageID.4). The SnagPod
`
`Software is the subject of a US Copyright Registration. (Id.). The SnagPod Software
`
`is also the subject of a video (“the SnagPod Video”), which is also protected by a
`
`US Copyright Registration. (Id.). The SnagPod Software was licensed to LifeLoc
`
`Technologies, Inc. for use in a breathalyzer kiosk (“the SnagPod Kiosk”), which was
`
`also covered by this same US Copyright Registration. (ECF No. 1, PageID.5).
`
`Defendant PKT, a similar company, offers alcohol screening, pre-trial
`
`services, probation check-ins, and monitoring of diversion, treatment, and work-
`
`release programs. (Id.). David Kreitzer (“Kreitzer”), a PKT employee who
`
`supervised the engineering and creation of PKT’s automated breathalyzer kiosk, was
`
`contacted by a Wisconsin Sherriff’s Department about creating a lower-cost copy of
`
`the SnagPod Kiosk. (ECF No. 1, PageID.5–6). Kreitzer, who had access to the
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`SnagPod Software and the SnagPod Video, proceeded to create a copy of the
`
`SnagPod Kiosk known as the Automated Breathalyzer Kiosk (“AB Kiosk”). (ECF
`
`No. 1, PageID.6).
`
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`2
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`Case 2:23-cv-10401-PDB-EAS ECF No. 28, PageID.246 Filed 10/12/23 Page 3 of 19
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`SnagPod contends that the AB Kiosk is a derivative of the SnagPod Kiosk,
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`and that it copies several of the SnagPod Kiosk’s functions, formats, and elements.
`
`(Id.). SnagPod alleges that they have suffered and continue to suffer damages due to
`
`PKT’s wrongful copying of the SnagPod Kiosk. (Id.).
`
`
`
`
`
`II. PROCEDURAL BACKGROUND
`
`
`
`SnagPod initiated this action by filing a seven count Complaint against PKT
`
`on February 15, 2023. (ECF No. 1). The Complaint asserts several claims all
`
`stemming from PKT’s alleged copying of the SnagPod Software and Video. Counts
`
`I–III state claims for copyright infringement under 17 U.S.C. § 501. (ECF No. 1,
`
`PageID.7–11). Count IV states a claim for deceptive trade practices under Mich.
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`Comp. Law § 445.903. (ECF No. 1, PageID.12). Count V states a claim for unjust
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`enrichment. (ECF No. 1, PageID.12–13). Count VI states a claim for trade dress
`
`infringement under 15 U.S.C. § 1125(a). (ECF No. 1, PageID.13–14). Count VII
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`states a claim for dilution under 15 U.S.C. § 1125(c). (ECF No. 1, PageID.14).
`
`
`
`On March 17, 2023, Defendant PKT filed its Answer to Plaintiff’s Complaint.
`
`(ECF No. 9). PKT denied the bulk of SnagPod’s allegations as untrue and asserted
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`several affirmative defenses. (Id.) On June 2, 2023, PKT filed a Motion for Judgment
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`3
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`Case 2:23-cv-10401-PDB-EAS ECF No. 28, PageID.247 Filed 10/12/23 Page 4 of 19
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`on the Pleadings pursuant to Fed. R. Civ. P. 12(c) as to all counts of SnagPod’s
`
`Complaint. (ECF No. 22).
`
`
`
`On June 22, 2023, the parties stipulated to the dismissal of Counts IV–VII of
`
`the Complaint. (ECF No. 23). On June 23, 2023, the Court filed a Stipulated Order
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`of Dismissal of those counts with prejudice. (ECF No. 24).
`
`
`
`Also on June 23, 2023, SnagPod filed a Response to PKT’s Motion for
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`Judgment on the Pleadings as to the remaining counts. (ECF No. 25). On July 7,
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`2023, PKT filed its Reply, in support of its motion. (ECF No. 26).
`
`
`
`III. LEGAL STANDARD
`
`
`
`“A motion for judgment on the pleadings under Federal Rule of Civil
`
`Procedure 12(c) generally follows the same rules as a motion to dismiss the
`
`complaint under Rule 12(b)(6).” Amir v. AmGuard Ins. Co., 606 F. Supp. 3d 653,
`
`658 (E.D. Mich. 2022) (citing Bates v. Green Farms Condo. Ass’n, 958 F.3d 470,
`
`480 (6th Cir. 2020)).
`
`Federal Rule of Civil Procedure 12(b)(6) allows for the dismissal of a case
`
`where the complaint fails to state a claim upon which relief can be granted. When
`
`reviewing a motion to dismiss under Rule 12(b)(6), a court must “construe the
`
`complaint in the light most favorable to the plaintiff, accept its allegations as true,
`
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`4
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`Case 2:23-cv-10401-PDB-EAS ECF No. 28, PageID.248 Filed 10/12/23 Page 5 of 19
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`and draw all reasonable inferences in favor of the plaintiff.” Handy-Clay v. City of
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`Memphis, 695 F.3d 531, 538 (6th Cir. 2012). To state a claim, a complaint must
`
`provide a “short and plain statement of the claim showing that the pleader is entitled
`
`to relief.” Fed. R. Civ. P. 8(a)(2). “[T]he complaint ‘does not need detailed factual
`
`allegations’ but should identify ‘more than labels and conclusions.’” Casias v. Wal–
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`Mart Stores, Inc., 695 F.3d 428, 435 (6th Cir. 2012) (quoting Bell Atlantic Corp. v.
`
`Twombly, 550 U.S. 544, 555 (2007)).
`
`The court “need not accept as true a legal conclusion couched as a factual
`
`allegation, or an unwarranted factual inference.” Handy-Clay, 695 F.3d at 539
`
`(internal citations and quotation marks omitted). In other words, a plaintiff must
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`provide more than a “formulaic recitation of the elements of a cause of action” and
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`his or her “[f]actual allegations must be enough to raise a right to relief above the
`
`speculative level.” Twombly, 550 U.S. at 555–56. The Sixth Circuit has explained
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`that, “[t]o survive a motion to dismiss, a litigant must allege enough facts to make it
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`plausible that the defendant bears legal liability. The facts cannot make it merely
`
`possible that the defendant is liable; they must make it plausible.” Agema v. City of
`
`Allegan, 826 F.3d 326, 331 (6th Cir. 2016) (citing Ashcroft v. Iqbal, 556 U.S. 662,
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`678 (2009)).
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`5
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`Case 2:23-cv-10401-PDB-EAS ECF No. 28, PageID.249 Filed 10/12/23 Page 6 of 19
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`IV. ANALYSIS
`
`A. Because PKT’s Motion for Judgment on the Pleadings as to Counts I–III
`turn on the same legal issue, the three counts can be analyzed together.
`
`
`PKT seeks judgment on the pleadings in its favor as to the three remaining
`
`counts of SnagPod’s complaint. (ECF No. 22, PageID.182). All three counts state
`
`claims for copyright infringement under 17 U.S.C. § 501. Count I alleges that PKT
`
`violated the statute by copying the SnagPod Software. Count II alleges the same for
`
`the SnagPod Video. Count III alleges that PKT violated the statute by distributing
`
`the AB Kiosk, a derivative work of its copyrighted Software and Video.
`
`Although these are three distinct counts, they all turn on the same legal issue:
`
`whether the elements of the SnagPod Kiosk that SnagPod seeks to protect are subject
`
`to copyright protection under 17 U.S.C. § 102(b). Accordingly, the Court will
`
`analyze the three claims together.
`
`B. SnagPod’s Complaint does not satisfy either prong required to establish a
`copyright infringement claim under Lexmark and Feist.
`
`
`Title 17 U.S.C. § 106 gives the owner of a copyright the exclusive right to,
`
`among other things, reproduce, prepare derivative works, and distribute the
`
`copyrighted work. Works of authorship, including literary works, are among the
`
`types of works eligible for copyright protection under the statute. 17 U.S.C. § 102(1).
`
`PKT does not argue that software, like the SnagPod Kiosk, cannot qualify as a
`
`
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`6
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`Case 2:23-cv-10401-PDB-EAS ECF No. 28, PageID.250 Filed 10/12/23 Page 7 of 19
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`literary work per se. Rather, PKT contends that the specific elements of the SnagPod
`
`Kiosk that SnagPod seeks to protect are unprotectable under the test set forth in Feist
`
`Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991) and expounded
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`on by the Sixth Circuit in Lexmark Int'l, Inc. v. Static Control Components, Inc., 387
`
`F.3d 522 (6th Cir. 2004). (ECF No. 22, PageID.174).
`
`To establish a claim for copyright infringement of software a plaintiff must
`
`show “(1) ownership of a valid copyright in the computer program at issue … and
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`(2) that the defendant copied protectable elements of the work.” Lexmark Int'l, Inc.
`
`v. Static Control Components, Inc., 387 F.3d 522, 534 (6th Cir. 2004) (citing Feist
`
`Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)). SnagPod’s
`
`Complaint fails to satisfy either prong.
`
`i.
`
`
`
`SnagPod has not pled ownership of a valid copyright in its Software
`and Video.
`
`SnagPod has not established that it owns a valid copyright in the elements of
`
`the SnagPod Kiosk it seeks to protect. (ECF No.22, PageID.175). This prong of
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`Lexmark tests “the originality and non-functionality of the work.” Id. (citing M.M.
`
`Bus. Forms Corp. v. Uarco, Inc., 472 F.2d 1137, 1139 (6th Cir. 1973). Id. Under 17
`
`U.S.C. § 102(a), only “original works of authorship” are entitled to copyright
`
`protection. That a work is original “means only that the work was independently
`
`created by the author (as opposed to copied from other works), and that it possesses
`7
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`Case 2:23-cv-10401-PDB-EAS ECF No. 28, PageID.251 Filed 10/12/23 Page 8 of 19
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`at least some minimal degree of creativity, even if the work is not a novel one.” Id.
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`(quoting Feist, 499 U.S. at 345–46) (internal quotation mark omitted). “[T]he
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`threshold showing of originality is not a demanding one,” (Id.) “even a slight amount
`
`will suffice. Id. (quoting Feist, 499 U.S. at 345).
`
`Nonetheless, even if a work is original within the meaning of U.S.C. § 102(a),
`
`it may still be unprotectable under U.S.C. § 102(b), which states that:
`
`In no case does 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.
`
`U.S.C. § 102(b). This provision exemplifies the common-law demarcation between
`
`the domains of copyright law and patent law. Lexmark, 387 F.3d at 534. “[U]nlike a
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`patent, a copyright gives no exclusive right to the art disclosed; protection is given
`
`only to the expression of the idea—not the idea itself.” Id. (quoting Mazer v. Stein,
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`347 U.S. 201, 217 (1954)). See also RJ Control Consultants, Inc. v. Multiject, LLC,
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`981 F.3d 446, 455 (6th Cir. 2020) (“copyright law protects an author's original
`
`expression but does not give the author the exclusive right to use the ideas expressed
`
`in that work. Such ideas may only be protected by obtaining a patent”).
`
`This “elusive boundary line between idea and expression, between process
`
`and non-functional expression” is where this case lies. Lexmark, 387 F.3d at 535.
`
`SnagPod contends that the allegedly copied elements of the SnagPod Kiosk
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`Case 2:23-cv-10401-PDB-EAS ECF No. 28, PageID.252 Filed 10/12/23 Page 9 of 19
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`“comprise original and creative expressions” protectable under copyright law. (ECF
`
`No. 1, PageID.7). PKT, however, believes these elements are unprotectable ideas.
`
`(ECF No. 22, PageID.181).
`
`Two related doctrines help distinguish between the categories. First, under the
`
`doctrine of merger, “[w]here the expression is essential to the statement of the idea
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`… the idea and expression are said to have merged” and “copyright protection does
`
`not exist because granting protection to the expressive component of the work
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`necessarily would extend protection to the work's uncopyrightable ideas as well.”
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`Lexmark, F.387 F.3d at 535 (internal quotation marks omitted). Similarly, under the
`
`doctrine of scenes a faire1, “when external factors constrain the choice of expressive
`
`vehicle,” choices that must be made because of these constraints are precluded from
`
`receiving copyright protection. Id. In the software context, this means that “elements
`
`of a program dictated by practical realities––e.g., compatibility requirements,
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`computer manufacturer design standards, target industry practices, and standard
`
`computer programming practices—may not obtain protection.” Id. With these
`
`
`1 Under Scenes a faire, to the extent that an expressive vehicle is functional and
`“must necessarily be used as incident to expression of the underlying ideas” that
`vehicle is not copyrightable. Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d
`1510, 1524 (9th Cir. 1992) (internal quotation mark omitted). 
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`9
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`Case 2:23-cv-10401-PDB-EAS ECF No. 28, PageID.253 Filed 10/12/23 Page 10 of 19
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`doctrines in mind, the Court must discern whether SnagPod seeks to protect
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`expression or idea.
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`SnagPod seeks to protect the “sequence, structure, organization, and user
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`interface of the input and output formats” of the SnagPod Kiosk. (Complaint, ECF
`
`No. 1, PageID.8). These include:
`
`“[T]he ideas, procedures, processes, systems, and/or methods of
`operation of embedded in a “Welcome” page, a “Personal Info” page,
`an “Enter Your User ID” page, a “Taking Your Photo” page, a
`“Creating Fingerprint Records” page, a “Fingerprint Authorization”
`page, “Alcohol Testing” pages, and “Alcohol Test Completed” pages.
`
`(ECF No.22, PageID.177). PKT contends that these are necessary “components of,
`
`or steps in, a computer alcohol breathalyzer system,” which are unprotectable under
`
`the doctrines of merger and scenes a faire as codified by 17 U.S.C. § 102(b). (ECF
`
`No. 22, PageID.178). Put differently, for PKT’s motion to succeed, this Court must
`
`determine that a “Welcome” page, an “Enter Your User ID,” page, a “Take Your
`
`Photo” page, a “Creating Fingerprint Records” page, a “Fingerprint Authorization”
`
`page, “Alcohol Testing” pages, and “Alcohol Test Completed” pages, and their
`
`sequence, structure, and organization, are so essential to and embedded in the
`
`operation of an alcohol breathalyzer kiosk as to be precluded from copyright
`
`protection under the above doctrines. The Court finds this to be correct.
`
`
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`10
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`Case 2:23-cv-10401-PDB-EAS ECF No. 28, PageID.254 Filed 10/12/23 Page 11 of 19
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`
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`Consider first the pages themselves. How would an automated breathalyzer
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`kiosk operate without an “Enter Your User ID” page? Each user must have a unique
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`ID or else it would be impossible for the kiosk to accurately record the results of
`
`each test. The same is true for the “Fingerprint Authorization” and “Take Your
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`Photo” pages: Without them, how could an automated kiosk verify the identities of
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`the users it tests? As to the “Alcohol Testing” and “Alcohol Test Completed” pages:
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`How could a breathalyzer kiosk function without pages initiating the breathalyzer
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`test and informing its users when the test has been completed?
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`The same is true for the sequence and organization of these pages, which
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`SnagPod also seeks to protect. First, the kiosk must obtain the user’s ID. Then it
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`must verify the user’s identity with fingerprints and photographs. Next, it must
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`administer the breathalyzer test. Lastly, it must let the user know that the test has
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`been completed. It strains credulity to suggest that these pages could be sequenced
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`and organized in any other logical manner.
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`SnagPod does not directly contest PKT’s assertions that the elements it seeks
`
`to protect are essential to the operation of a breathalyzer kiosk and are thus
`
`unprotectable under merger and scenes a faire. Instead, SnagPod argues only that
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`the Court cannot make this determination without discovery and expert testimony.
`
`(ECF No. 25, PageID.231).
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`
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`11
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`Case 2:23-cv-10401-PDB-EAS ECF No. 28, PageID.255 Filed 10/12/23 Page 12 of 19
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`To support its argument, SnagPod relies on RJ Control Consultants in which
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`the Sixth Circuit noted that, in the computer software context, “the assistance of an
`
`expert is desirable if, not required” before a court can distinguish between essential
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`element and protectable expression. RJ Control Consultants, 446 F.3d at 458. This
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`case is highly distinguishable from our present dispute.
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`There, the copyrighted material at issue was the software source code used in
`
`a rotary turntable control system for a plastic injection molding device. Id. at 451. In
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`short, to determine if the source code was copyrightable, the court would have had
`
`to parse individual lines of computer code to determine:
`
`“Which aspects or lines of the software code are functional? Which
`are expressive? Which are commonplace or standard in the industry?
`Which elements, if any, are inextricably intertwined?”
`Id. at 458. The Court agrees that parsing individual lines of code is beyond its
`
`expertise and would likely require expert witnesses, but no such parsing is required
`
`here. Unlike the plaintiff in RJ Control Consultants, SnagPod does not claim that
`
`PKT has copied individual lines of the source code it used to create the SnagPod
`
`Kiosk. Rather, it claims that PKT copied elements of the SnagPod Kiosk’s outputs:
`
`the landing pages, the structure, the input prompts, and the sequence. These are much
`
`simpler claims to analyze. As such, the language from RJ Control Consultants
`
`counseling the use of expert testimony in certain cases is inapplicable here.
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`12
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`Case 2:23-cv-10401-PDB-EAS ECF No. 28, PageID.256 Filed 10/12/23 Page 13 of 19
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`Instead, a closer analog to our case is Gray-El v. Jennifer Lopez/Nuyorican
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`Prods., Inc., 2019 WL 8750506 (E.D. Mich. Dec. 18, 2019).2 There, the plaintiff
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`brought a copyright infringement action against the defendant for allegedly copying
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`his idea for a reality television dancing show. Id. at *1. The court dismissed the claim
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`under scenes a faire because the elements of the show that the plaintiff sought to
`
`protect “the existence of a competition generally, judges, an audience, rounds of
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`competition and elimination, a host or hosts, and a prize or prizes for the winner”
`
`are essential elements to any reality dance television show and were thus
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`unprotectable. Id. at 12. See also Milano v. NBC Universal, Inc., 584 F. Supp. 2d
`
`1288 (C.D. Calif. 2008) (holding the same as to the essential elements of a weight
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`loss show that the plaintiff sought to protect).
`
`The court in Grey-El, per Magistrate Judge Michael Hluchaniuk, made its
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`determination without expert testimony and this Court will do the same with
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`SnagPod’s claim. See Taylor v. Victoria's Secret Stores, Inc., 2011 WL 13097641,
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`at *5 (W.D. Tenn. Sept. 29, 2011) (finding that it is appropriate for a court to dismiss
`
`a copyright infringement claim under Rule 12 “if it concludes that the similarities
`
`pertain only to unprotected elements of the work”); Bowen v. Paisley, 2013 WL
`
`
`2 report and recommendation adopted sub nom. Gray-El v. Lopez, 2020 WL
`1060642 (E.D. Mich. Mar. 5, 2020).
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`Case 2:23-cv-10401-PDB-EAS ECF No. 28, PageID.257 Filed 10/12/23 Page 14 of 19
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`6237469, at *6 (M.D. Tenn. Dec. 3, 2013) (holding that it is appropriate to dismiss
`
`a copyright infringement claim at the Rule 12 stage “under appropriate
`
`circumstances”); Bliss Collection, LLC v. Latham Companies, LLC, 2021 WL
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`5413796, at *3 (E.D. Ky. Mar. 16, 2021) (noting that “[e]very court of appeal to
`
`have addressed the question has held that” courts may dismiss copyright
`
`infringement cases at the Rule 12 stage).
`
`In Gray-El, expert testimony was not required to determine that persons acting
`
`as judges, an audience, hosts, and a cash prize are essential to reality dance shows.
`
`Nor, in this case, is an expert witness necessary to determine that a “Welcome” page,
`
`a “Personal Info” page, an “Enter Your User ID” page, a “Taking Your Photo” page,
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`a “Creating Fingerprint Records” page, a “Fingerprint Authorization” page,
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`“Alcohol Testing” pages, and “Alcohol Test Completed” pages are equally essential
`
`to a breathalyzer kiosk.
`
`Lastly, the Court notes that SnagPod believes it is entitled to a presumption
`
`that it satisfies the first prong of Lexmark by virtue of the copyrights it holds in the
`
`SnagPod Software and SnagPod Video. (ECF No. 25, PageID.224). SnagPod is
`
`mistaken.
`
`Under 17 U.S.C. § 410(c), “[i]n any judicial proceedings the certificate of a
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`registration made before or within five years after first publication of the work shall
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`Case 2:23-cv-10401-PDB-EAS ECF No. 28, PageID.258 Filed 10/12/23 Page 15 of 19
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`constitute prima facie evidence of the validity of the copyright and of the facts stated
`
`in the certificate.” Courts have held that, under 17 U.S.C. § 410(c), when the plaintiff
`
`has obtained a copyright registration, a presumption exists whereby “the defendant
`
`bears the burden of producing evidence which brings into question the
`
`copyrightability of the work.” Consul Tec, Inc. v. Interface Sys., Inc., 1991 WL
`
`427891, at *4 n.4 (E.D. Mich. Oct. 31, 1991) (quoting Digital Commc'ns Assocs.,
`
`Inc. v. Softklone Distrib. Corp., 659 F. Supp. 449, 456 (N.D. Ga. 1987)); see also
`
`Lexmark, F.3d 522 at 535 (noting this same presumption).
`
`SnagPod is not entitled to this presumption because its copyrights in the
`
`SnagPod Software and SnagPod Video were certified more than five years after the
`
`first publication of each work. The SnagPod Software was first published on June
`
`21, 2011, while the copyright’s effective date of registration is January 28, 2022.
`
`(ECF No. 1-1, PageID.21). The SnagPod Video was first published on May 5, 2011,
`
`but the copyright was not effectively registered until November 23, 2022. (ECF No.
`
`1-2 PageID.24). Since its registration date is outside of the five-year publication
`
`window, SnagPod is not entitled to the 17 U.S.C. § 410(c) presumption.
`
`Without the aid of this presumption, and because SnagPod seeks to protect
`
`unprotectable essential elements of a breathalyzer kiosk, SnagPod’s Complaint does
`
`not satisfy the first prong of Lexmark.
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`Case 2:23-cv-10401-PDB-EAS ECF No. 28, PageID.259 Filed 10/12/23 Page 16 of 19
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`ii.
`
`
`
`SnagPod has not pled that PKT copied protectable elements of its
`Software.
`
`The second prong of Lexmark, whether the plaintiff has established that
`
`the defendant copied protectable elements of the work, tests “whether any copying
`
`occurred (a factual matter) and whether the portions of the work copied were entitled
`
`to copyright protection (a legal matter).” Lexmark, 387 F.3d at 534. The Court will
`
`address these matters in reverse order.
`
`The legal question of whether the elements of the SnagPod Kiosk are entitled
`
`to copyright protection hinges on the same idea-expression distinction discussed
`
`above. In Lexmark, for example, the Sixth Circuit analyzed the doctrines of merger
`
`and scenes a faire under prong one of its analysis, but noted that courts also
`
`commonly do so “as part of prong two of the infringement test.” Id. at 538.
`
`Ultimately, where the analysis is done is immaterial because “[b]oth prongs of the
`
`infringement test … consider copyrightability, which at its heart turns on the
`
`principle that copyright protection extends to expression, not to ideas.” Id. Since the
`
`Court addressed this principle in the preceding section the Court will not rehash that
`
`analysis here.
`
`It is relevant to note that, if the Court granted copyright protection to SnagPod
`
`for those elements of the SnagPod Kiosk it seeks to protect, SnagPod would gain a
`
`monopoly on breathalyzer kiosks. PKT, and all other competitors, would be unable
`16
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`

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`Case 2:23-cv-10401-PDB-EAS ECF No. 28, PageID.260 Filed 10/12/23 Page 17 of 19
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`to create a functional kiosk without infringing on this copyright. In effect, this would
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`give SnagPod patent protection for breathalyzer kiosks when all they have is a
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`copyright in their SnagPod Kiosk. Therefore, as a legal matter, even if one assumes,
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`arguendo, that PKT did copy elements of the SnagPod Kiosk, none of those elements
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`are entitled to copyright protection.
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`SnagPod misses this crucial point. For example, SnagPod argues that, because
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`PKT’s Answer denied as untrue SnagPod’s allegation that “[t]he AB Kiosk is a
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`substantially similar copy and derivative work of the SnagPod [Kiosk],” this creates
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`a “material issue of fact” as to whether any copying occurred, which precludes the
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`Court from granting PKT’s Motion. (ECF No. 25, PageID.220).
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`This argument neglects to consider that PKT’s Answer only creates a material
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`issue of fact if any of the alleged copying, which it denies, pertained to protectable
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`elements of the SnagPod Kiosk. Since, per the above analysis, none of these
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`elements is copyrightable, whether any copying occurred is immaterial and thus does
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`not prevent the Court from granting PKT’s Motion.
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`Lastly, to the extent that SnagPod seeks protection for any copyrightable
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`expressive components of the SnagPod Kiosk, like the Kiosk’s layout, format, and
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`color scheme, PKT has, as a factual matter, not copied them. When “[n]o direct
`
`evidence of copying is available, a claimant may establish this element by showing
`
`
`
`17
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`

`

`Case 2:23-cv-10401-PDB-EAS ECF No. 28, PageID.261 Filed 10/12/23 Page 18 of 19
`
`that the defendant had access to the copyrighted work and that the copyrighted work
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`and the allegedly copied work are substantially similar.” Id. at 534. SnagPod’s
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`Complaint has done the former, but not the latter.
`
`SnagPod has alleged that PKT had access to the SnagPod Software and
`
`SnagPod Video through its copyrights in those works. (ECF No. 1, PageID.6).
`
`SnagPod has not, however, shown that the two kiosks are substantially similar.
`
`SnagPod attempts to do this in Exhibit F to their Complaint which offers a side-by-
`
`side comparison of the interfaces of both kiosks. (ECF No. 1-6, PageID.38–51). But
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`these photographs show that the two interfaces are not substantially similar. PKT
`
`notes several of the differences between them:
`
`The SnagPod Software has a black background with orange buttons;
`the AB Kiosk has a white background with blue buttons. The SnagPod
`Software does not have any logos; the AB Kiosk has a “PKT” logo and
`an ornate “AB” logo. The SnagPod Software displays four green
`fingerprints; the AB Kiosk displays one white fingerprint.
`
`(ECF No. 22, PageID.181) (internal citations omitted). These are merely a few of
`
`the many differences to the layout, format, and color scheme, of the two kiosks’
`
`interfaces. Since the layout, format, and color scheme, are the only arguably
`
`expressive and protectable components of the SnagPod Kiosk, and because these
`
`components are not substantially similar, SnagPod has not established that PKT has
`
`
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`18
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`

`

`Case 2:23-cv-10401-PDB-EAS ECF No. 28, PageID.262 Filed 10/12/23 Page 19 of 19
`
`copied any protectable elements of their kiosk. Therefore, SnagPod’s Complaint also
`
`fails this second prong of Lexmark.
`
`V. CONCLUSION
`
`
`
`For the above reasons, SnagPod’s Complaint does not satisfy either prong of
`
`the Lexmark test needed to state a claim for copyright infringement. As such, the
`
`Court GRANTS Defendant’s Motion for Judgment on the Pleadings (ECF No. 22)
`
`and dismisses the three remaining counts of Plaintiff’s Complaint (Counts I-III) with
`
`prejudice.
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`
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`IT IS SO ORDERED.
`
`Dated: October 12, 2023
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`s/Paul D. Borman
`Paul D. Borman
`United States District Judge
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`19
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