Freeborn & Peters LLP is pleased to announce that the Sixth Circuit has affirmed the jury verdict finding that client Hiller LLC has a valid copyright in its proprietary training manual, used to train technicians in customer service.

The court further affirmed the district court's jury instruction on derivative works, which provided "[w]here use of unauthorized preexisting material pervades the entire work ... copyright protection may not be granted."

This is a significant opinion for the following reasons:

  • The panel decided an issue of first impression in the Sixth Circuit regarding the copyrightability of unauthorized derivative works; the panel rejected the argument that, as a matter of law, there can be no copyright protection in an unauthorized derivative work. Instead, the panel reasoned that because (i) Section 106(2) gives the author of an original work the exclusive right to create works that are derivative (based on) that work, and (ii) Section 103(a) provides that a work may be copyrighted even if it unlawfully incorporates preexisting material, but protection for such work "does not extend to any part of the work in which such material was used unlawfully"; (iii) the creator of an unauthorized derivative work would lose all copyright protection in the work only if unauthorized preexisting materials "ran throughout every 'part' of the work, or in other words 'pervaded' it." The opinion distinguished the 7th Circuit's opinion in Pickett v. Prince.
  • The decision makes clear that original training materials may enjoy copyright protection, even if there is some overlap between the materials and preexisting works. The Sixth Circuit found that many of the supposed similarities between the Guide and prior materials were not protectable under copyright law, either as short phrases or because the underlying ideas, systems, or procedures were "merged" with the expression.

Hiller was represented at trial and on appeal by Jeffrey J. Catalano, a Partner in Freeborn's Chicago office, and Jason P. Stearns, a Partner in the firm's Tampa office. The Appellee, Clockwork IP, LLC, was represented by McGuire Woods.

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