Intellectual Property Client Service Group
To: Our Clients and Friends
April 30, 2009
NEW CASE CLARIFIES COPYRIGHT PROTECTION FOR HANDBOOKS, MANUALS AND TRAINING MATERIALS
Although the copyright term “literary works” tends to conjure images of Hemingway and Faulkner, most companies have a different—and often more valuable—set of “literary works,” including training materials, employee handbooks, how-to booklets, customer pamphlets and the like. Some are in printed form; others are available at the company’s website. Indeed, some companies are in the business of creating such materials—and this Spring a hotly litigated dispute between two such companies has shed new light on the scope of protection for this special category of literary works.
The facts of Situation Management Systems v. ASP Consulting LLC, 90 USPQ 2d 1095 (1st Cir. 2009) are straightforward: Situation Management Systems, Inc. (“SMS”) developed a series of training materials for teaching effective communication and negotiation skills within the workplace. Its clients include Anheuser-Busch, NASA and Procter & Gamble, who buy these materials from SMS and use them in employee training workshops.
A few years ago, several SMS employees left to form a competing company, ASP Consulting LLC (“ASP”). Several of them had copies of SMS manuals, and the new training manuals they created for ASP were similar to the SMS manuals. When SMS sued ASP for copyright infringement, however, the trial court threw the case out. The story of that decision and its recent reversal by the 1st Circuit Court of Appeals offers insights into the scope of copyright protection for company manuals and handbooks.
There was no question that the defendant copied portions of the SMS materials. The only issue was thus whether the portions copied were protected by copyright. Resolution of that issue turned on two central concepts of copyright law: (1) the requirement of “originality” and (2) the exclusion from protection of ideas, processes, and systems. The first requirement seems obvious: the law should only protect original expression. But what qualifies as “original”? The second requirement—part of the idea/expression dichotomy—while more subtle, has been labeled by the Supreme Court as the “most fundamental axiom of copyright law,” which “assures authors the right to their original expression, but
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