HON. FRANK P. GERACI, JR., Chief Judge.
Logical Operations Inc. ("Logical") brings suit for copyright infringement against 30 Bird Media, LLC ("30 Bird") and three of its officers—Adam A. Wilcox, Benham Tchoubineh, and Alireza Choubineh (the CEO, President, and CFO of 30 Bird, respectively). Logical and 30 Bird are in the business of developing and publishing instructional materials. At issue in this case are the parties' competing lines of instructional manuals for certain computer programs. Logical alleges that Defendants designed their materials to mimic Logical's series and, by doing so, infringed on Logical's copyrights. ECF No. 59. Presently before the Court is Defendants' motion for summary judgment. ECF No. 72. Plaintiff opposes the motion. ECF No. 74. For the reasons that follow, Defendants' motion is GRANTED IN PART, in that summary judgment is granted on Logical's claim of copyright infringement but denied without prejudice on Defendants' counterclaim for attorney's fees.
Summary judgment is appropriate when the record shows that there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Disputes concerning material facts are genuine where the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding whether genuine issues of material fact exist, the court construes all facts in the light most favorable to the non-moving party and draws all reasonable inferences in the non-moving party's favor. See Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). However, the non-moving party "may not rely on conclusory allegations or unsubstantiated speculation." F.D.I.C. v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010) (quotation omitted).
Consistent with the applicable standard of review, the following narrative consists of the undisputed facts and the disputed facts taken in the light most favorable to Logical. See Smolen v. Wilkinson, No. 11-CV-6001, 2013 WL 5417099, at *1 (W.D.N.Y. Sept. 26, 2013).
Logical develops, markets, and distributes training courseware for, among other things, various computer programs. At issue in this case are the "Axzo ILT Series line of ... instructional manuals" for Microsoft Excel, Outlook, and Word. ECF No. 72-28 ¶ 28. Logical obtained the copyrights to these manuals when it acquired Axzo Press, the original publisher, in 2014.
Benham Tchoubineh founded 30 Bird in March 2014. Initially, 30 Bird did not publish instructional materials for the Microsoft suite of products. ECF No. 74-2 at 23. But, as Logical describes the sequence of events, 30 Bird undertook substantial efforts to develop a competing line of Microsoft Office coursework beginning in January 2015. At that time, 30 Bird hired Adam Wilcox as CEO and made him part owner of the company. ECF No. 72-28 ¶ 4. Wilcox had previously worked at Axzo Press before its acquisition by Logical, and he had been a designer on the Axzo ILT Series. Over the next months, 30 Bird went on to hire a number of former Logical and Axzo Press employees. See ECF No. 74 at 9-10. The crux of Logical's claim is that 30 Bird's designers had access to and used the Axzo ILT Series as the model for 30 Bird's series, substantially replicating its design, look, and feel.
In July 2015, Logical learned that 30 Bird was creating competing manuals, and it brought suit in October of that year. Logical brings one claim of copyright infringement against Defendants. ECF No. 59 at 9-11. Defendants have raised a counterclaim requesting attorney's fees under 17 U.S.C. § 505.
Defendants seek judgment as a matter of law on both Logical's claim and their counterclaim for attorney's fees. Because Defendants develop no argument as to why they are entitled to attorney's fees under 17 U.S.C. § 505, the Court denies their motion on that issue without prejudice. See Baker v. Urban Outfitters, Inc., 431 F.Supp.2d 351, 357 (S.D.N.Y. 2006) (stating that "[a]n award of attorney's fees and costs is not automatic" under § 505 and listing factors that a court should consider).
Turning to the claim for copyright infringement, Defendants argue, among other things, that summary judgment is appropriate because Logical cannot demonstrate that the 30 Bird manuals are substantially similar to the Axzo ILT series. More specifically, Defendants contend that the similarities between the competing series largely relate to unprotected elements. Defendants assert that once those unprotected elements are filtered out, there is no "room to find substantial similarity." ECF No. 72-29 at 11.
While not conceding that many of the similarities between 30 Bird's and Logical's
In analyzing this dispositive issue, the Court begins by setting forth the relevant law. It then proceeds to analyze the elements of Logical's and 30 Bird's works that purportedly give rise to a claim for copyright infringement. Finally, the Court addresses the question of total concept and feel, concluding that Defendants are entitled to summary judgment.
To prove a claim of copyright infringement, a plaintiff must establish three elements: "1) that his work is protected by a valid copyright, 2) that the defendant copied his work, and 3) that the copying was wrongful." Zalewski v. Cicero Builder Dev., Inc., 754 F.3d 95, 100 (2d Cir. 2014). The third element—wrongful copying—is at issue here.
Wrongful copying exists "where two works are `substantially similar.'" Laspata DeCaro Studio Corp. v. Rimowa GmbH, No. 16 Civ. 934, 2018 WL 3059650, at *3 (S.D.N.Y. June 20, 2018). The Second Circuit has articulated three standards that bear on the question of substantial similarity. "In most cases, the test for substantial similarity is the `ordinary observer test,' which queries whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work." Hamil Am. Inc. v. GFI, 193 F.3d 92, 100 (2d Cir. 1999); see also Zalewski, 754 F.3d at 102 (stating that the question is whether "the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same"). "Although dissimilarity between some aspects of the works will not automatically relieve the infringer of liability, numerous differences tend to undercut substantial similarity." Disney Enters., Inc. v. Sarelli, 322 F.Supp.3d 413, 442 (S.D.N.Y. 2018) (internal citations and quotation marks omitted); see Williams v. Crichton, 84 F.3d 581, 588 (2d Cir. 1996) (stating that no liability attaches "when the similarities between the protected elements of plaintiff's work and the allegedly infringing work are of `small import quantitatively or qualitatively'").
The second standard is the "more discerning observer" test, which is used when a work is not "wholly original" and "incorporates elements from the public domain." Boisson v. Banian, Ltd., 273 F.3d 262, 272 (2d Cir. 2001); see also Zalewski, 754 F.3d at 102. That test requires "substantial similarity between those elements, and only those elements, that provide copyrightability to the allegedly infringed work." Belair v. MGA Ent., Inc., 503 F. App'x 65, 66 (2d Cir. 2012) (summary order) (internal quotation marks and brackets omitted). That is, "where the allegedly infringed work contains both protectible and unprotectible elements, the test must be more discerning, excluding the unprotectible elements from consideration." Lynx Ventures, LLC v. Miller, 45 F. App'x 68, 69 (2d Cir. 2002) (summary order) (internal quotation marks omitted).
The third standard—known as the "total concept and feel" standard— operates to clarify and limit the "more discerning observer" test. Taken to an extreme, the "more discerning observer" test could be understood to require a court to "dissect the works at issue into separate components and compare only the copyrightable elements." Boisson, 273 F.3d at
For that reason, the Second Circuit requires courts to be "principally guided by comparing the contested design's total concept and overall feel with that of the allegedly infringed work, as instructed by [their] good eyes and common sense." Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 66 (2d Cir. 2010) (citations and internal quotation marks omitted). A court must analyze not only whether a defendant has misappropriated particular protectible elements of the plaintiff's work, but also "whether the alleged infringer has misappropriated the original way in which the author has selected, coordinated, and arranged the elements of his or her work." Id. (internal quotation marks omitted); see also Tufenkian, 338 F.3d at 134 ("[T]he total-concept-and-feel locution functions as a reminder that, while the infringement analysis must begin by dissecting the copyrighted work into its component parts in order to clarify precisely what is not original, infringement analysis is not simply a matter of ascertaining similarity between components viewed in isolation.").
Regardless of the standard being applied, summary judgment on a claim of copyright infringement is appropriate "[i]f the similarity between the two works `concerns only noncopyrightable elements' or `no reasonable trier of fact could find the works substantially similar.'" Porto v. Guirgis, 659 F.Supp.2d 597, 610 (S.D.N.Y. 2009) (quoting Crane v. Poetic Prods. Ltd., 549 F.Supp.2d 566, 569 (S.D.N.Y. 2008)).
The "more discerning observer" test is premised on the observation that "even works which express enough originality to be protected also contain material that is not original, and hence that may be freely used by other designers." Tufenkian, 338 F.3d at 132. A "fundamental rule of copyright law is that it protects only ... those aspects of the work that originate with the author himself," and an author obtains no monopoly over elements derived from the public domain merely because he incorporates them into a creative work. Zalewski, 754 F.3d at 102 (quoting 17 U.S.C. § 102(a)). In applying the "more discerning observer" test, a court must examine the elements of the plaintiff's work and determine which elements are protectible and which are unprotectible. See Tufenkian, 338 F.3d at 134 & n.8; see also Zalewski, 754 F.3d at 106-07.
"Numerous doctrines separate protectable expression from elements of
Other principles include "scènes-à-faire" and the "merger" doctrine. The former "teaches that elements of a work that are `indispensable, or at least standard, in the treatment of a given topic'—like cowboys, bank robbers, and shootouts in stories of the American West—get no protection." Zalewski, 754 F.3d at 102; see, e.g., Civility Experts Worldwide v. Molly Manners, LLC, 167 F.Supp.3d 1179, 1196 (D. Colo. 2016) (finding selection of topics in instructional manuals on manners and etiquette unprotected scènes-à-faire where any such manual "will likely cover these sorts of topics"). The merger doctrine "instructs that some ideas can only be expressed in a limited number of ways—single words or colors for example. When expression is so limited, idea and expression `merge.' Expressions merged with ideas cannot be protected, lest one author own the idea itself." Zalewski, 754 F.3d at 102-03; see, e.g., Nat'l Nonwovens, Inc. v. Consumer Prods. Enters., Inc., 397 F.Supp.2d 245, 256-57 (D. Mass. 2005) (unadorned step-by-step instruction on boiling wool felt implicated merger doctrine, because of limited number of ways in which to convey the relevant information).
However, as noted above, even unprotectible elements or features may receive protection to the extent that the author selects, coordinates, arranges, or otherwise expresses those elements in an original way. See Gaito, 602 F.3d at 66; see also Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 349, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991) ("[I]f the selection and arrangement [of a factual compilation] are original, these elements of the work are eligible for copyright protection."). For example, while facts are unprotectible, the expression of those facts in an original way may be. The Seventh Circuit provides a helpful illustration:
Am. Dental Ass'n v. Delta Dental Plans Ass'n, 126 F.3d 977, 979 (7th Cir. 1997); see also Zalewski, 754 F.3d at 102 ("[A]ny author may draw from the history of English-speaking peoples, but no one may copy from A History of the English-Speaking Peoples. Any artist may portray the Spanish Civil War, but no one may paint another Guernica."). Copyright protection can be afforded to the manner in which an author selects, coordinates, or expresses unprotectible elements in a work so long as it possesses "some minimal degree of creativity." Kregos v. Associated Press, 937 F.2d 700, 703 (2d Cir. 1991) (quoting Feist, 499 U.S. at 345, 111 S.Ct. 1282).
The works in dispute in this case occupy a similar place to nonfiction literature. Instructional manuals, textbooks,
The Court now applies the law to the present works. The Court does not possess the approximately seventy books that are in dispute, but Logical has provided a copy of its book, Microsoft Excel 2010, Basic, Instructor's Edition (the "Axzo Manual"), and a copy of 30 Bird's competing volume, Microsoft Excel 2010 Level 1, Instructor Edition (the "30 Bird Manual"). Given that these books contain the alleged similarities underlying Logical's claim, and because the parties do not argue otherwise, the Court treats these books as exemplars of all of the books in dispute.
The Court uses the "more discerning observer" test, as the Axzo Manual contains both protectible and unprotectible elements. See Boisson, 273 F.3d at 272. The Court first examines the relevant elements of the manuals to determine which are protectible and which are unprotectible. The Court does not engage in an exhaustive comparison of each and every minute detail—as such an analysis would be unnecessary and counterproductive—but rather confines its evaluation to the most salient elements. See Gaito, 602 F.3d at 66; Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 909 (3d Cir. 1975) ("The more the court is led into the finer points of the [work], the less likely it is to stand upon the firmer, if more naive, ground of its considered impressions after its own perusal." (citing Nichols v. Universal Pictures Corp., 45 F.2d 119, 123 (2d Cir. 1930)). After determining which elements are protectible, the Court examines the total concept and feel of the manuals.
Logical contends that the manuals are similar in their "overall page appearance, layout, and approach." ECF No. 59 ¶ 30(a). By this, Logical appears to assert that the internal formatting of the manuals—spacing, page width, font, headers, etc.—are similar. There is authority for the proposition that book designs are not in themselves copyrightable. See, e.g., F. A. Davis Co. v. Wolters Kluwer Health, Inc., 413 F.Supp.2d 507, 513-14 (E.D. Pa. 2005); 2 Patry on Copyright § 4:19 (noting that Copyright Office denies registration to the "arrangement, spacing, or juxtaposition
On the other hand, there is also authority that the creative arrangement and coordination of textual and graphic elements is protectible. See Eagle Access Control Sys., Inc. v. USA Power Gate, Inc., No. CV 07-3789, 2008 WL 11334485, at *4 (C.D. Cal. Dec. 18, 2008) (discussing layouts of manuals in addressing substantial similarity); Livingstone, 949 F.Supp. at 1054 (stating that author's selection and arrangement of illustrations in medical textbook can be creative and original); see also Sadhu Singh Hamdad Trust v. Ajit Newspaper Advertising, Mktg. & Commc'ns, Inc., 503 F.Supp.2d 577, 589-90 (E.D.N.Y. 2007) (collecting cases where layout and manner of presentation were considered in concluding that work was entitled to copyright protection). Thus, while an abstract book design may not, standing alone, provide grounds for infringement, the manner in which specific text and graphics are selected and arranged in the Axzo and 30 Bird Manuals may be considered in evaluating total concept and feel.
Importantly, Logical does not assert that Defendants engaged in any verbatim copying of its textual or graphical content. Nor does it point to any instances where Defendants reproduced such content with minor or immaterial variations. Its allegations are narrower. Logical argues that, like the Axzo Manual, the 30 Bird Manual: (1) uses some of the same words in its exercise instructions (e.g., instructing students to "Click," "Select," or "Press"); (2) tells students to include the word "My" in document names (e.g., instructing students to save a file as "My Workbook"); and (3) uses fake companies as part of its exercises. Logical also contends that the 30 Bird Manual adheres to the same bolding, italicization, and font conventions as the Axzo Manual.
These elements are not protectible. Single words, short phrases, and standard fonts are not generally protectible subject matter. See TufAmerica, Inc. v. WB Music Corp., 67 F.Supp.3d 590, 594 n.18 (S.D.N.Y. 2014); Sadhu, 503 F.Supp.2d at 589. The idea of italicizing or bolding certain important words is not copyrightable. And the idea of using fake companies in exercises is not copyrightable: while a particular instructional fact pattern may be protectible, the mere notion of using such hypothetical scenarios is not. Cf. Nat'l Conference of Bar Exam'rs v. Multistate Legal Studies, Inc., 458 F.Supp.2d 252, 259 (E.D. Pa. 2006) (discussing multiple-choice questions).
Logical identifies "the generalized topic structure" as one element of similarity between its manuals and 30 Bird's manuals. ECF No. 59 ¶ 30(e). If Logical is simply arguing that its selection of topics is protectible, the Court is not convinced. Both manuals contain a similar selection of topics, but that appears to be a function of the subject matter and the manuals' particular purpose—i.e., to prepare students for Microsoft certification exams. One would expect that a manual teaching basic skills for Microsoft Excel would, necessarily or customarily, embrace certain topics, making the selection of topics akin to scènes-à-faire. See Molly Manners, 167 F.Supp.3d at 1196; see also McGraw-Hill,
The arrangement of topics is another matter, however. Granted, Defendants are on strong ground when they argue that a topic structure that starts "with the simplest lessons and mov[es] through to more complex lessons" is unprotectible. ECF No. 75-8 at 7. The idea of using such a progression in an instructional text is certainly not protectible, and the other manuals in the record establish that, in this context, such progression amounts to scènes-à-faire. See ECF Nos. 72-7, 72-8, 72-13; see also Hassett v. Hasselbeck, 177 F.Supp.3d 626, 631 (D. Mass. 2016) (order of topics in recipe book—"introductory chapters providing general tips followed by chapters of recipes organized by types of meals"—constituted unprotected scènes-à-faire). Indeed, structuring a manual or guide in this way would seem to be attributable more to common-sense notions of instructional design than to a creative or aesthetic decision.
But the doctrine of scènes-à-faire does not extend to the creative arrangement of specific topics within that overall progression. This is because the Court cannot conclude as a matter of law that the Axzo Manual's specific grouping and arrangement of topics is indispensable or standard for this subject matter. The manuals in the record follow an overall progression from simple to more complex topics, but they vary in how they group and order topics. See, e.g., ECF No. 72-7 at 4-7; ECF No. 72-8 at 4-5. Therefore, the Court declines to exclude the Axzo Manual's particular arrangement of topics from the "total concept and feel" calculus.
Logical next identifies the organization of each chapter as a similar element between the manuals. Both manuals do share a parallel arrangement. Each chapter begins with a page that displays the objectives for the chapter and estimates the time to complete the chapter. A chapter is then divided into a number of subchapters on specific topics. A subchapter starts with an explanation of the topic, which may be accompanied by charts, graphics, and step-by-step instructions. The subchapter provides an exercise for the student to reinforce the topic. Finally, each chapter ends with a summary of the lessons learned in the chapter and an additional exercise for the student to complete. In addition, both manuals include review questions.
The Court is skeptical that copyright protection could be afforded to the use of this general arrangement, as it appears to reflect a pedagogical method or technique. See 17 U.S.C. § 102(b) (barring from copyright protection "any idea, procedure, process, system, method of operation, concept, [or] principle"). Adam Wilcox stated in his deposition that "everyone" in the industry
But again, recognizing that the overall structure of each lesson is perhaps unprotectible does not mean that the Court may not consider the disputed works' lesson structures in assessing the total concept and feel. Many creative decisions must be made in the course of laying out a lesson in accordance with that general framework. Among other things, one must select how many concepts to include in a single lesson; decide how much explanation to provide before giving an exercise; decide how many exercises and activities to include; and, of course, decide how to express the content of the lesson—how a topic is explained, what sorts of graphics are used to illustrate concepts, the particular phrasing and instructions for exercises and review questions, etc. These creative choices are not excluded when assessing substantial similarity.
Logical correctly concedes that it can hold no copyright over the idea of using a two-column table to present instructional exercises. ECF No. 74 at 19; Molly Manners, 167 F.Supp.3d at 1197 n.11 (idea of sticker chart to encourage good behavior in children is unprotectable idea). Any protection extends, if at all, only to Logical's particular expression of that idea. But Defendants contend that the merger doctrine renders Logical's exercise tables unprotectible because "there are a limited amount of ways to convey information in a table." ECF No. 72-29 at 14. The Court disagrees that the merger doctrine is appropriately applied here.
As discussed previously, the merger doctrine applies to bar protection of expression "in those instances where there is only one or so few ways of expressing an idea that protection of the expression would effectively accord protection to the idea itself." Kregos, 937 F.2d at 705. Here, the record shows that there are numerous ways of designing and organizing a two-column table to convey information on Microsoft Excel topics. See ECF No. 72-7 at 13; ECF No. 72-8 at 11; ECF No. 72-9 at 10. Choices include, of course, the content conveyed in the table, but also the colors, shading, italicization, and bolding used, the graphics employed, the sizing of each cell, row, and column, and the size of the table as a whole. Like other restrictive instructional methods—for example, multiple-choice questions—presenting information in a two-column table certainly confines the range of creative expression, but it does not preclude or so limit such expression as to implicate the merger doctrine. See Nat'l Conference of Bar Exam'rs, 458 F.Supp.2d at 259 (noting that test questions can constitute original expression by virtue of their "wording, particularized facts, and answer choices"). The Axzo Manual's unique expression of its instructional exercises—i.e., the content of those exercises in conjunction with the design of its two-column tables—may be considered in assessing substantial similarity.
Logical identifies the inclusion and arrangement of instructor cues and exam objectives as similar elements. Both manuals use what the parties call an "instructor cue," which is a phrase or icon set off in the left margin that alerts the instructor to particular material. For example, one of the instructor cues is a small icon that indicates to the instructor that there is a PowerPoint slide associated with the adjacent item. See ECF No. 74-2 at
Defendants argue that the use of instructor cues constitutes scènes-à-faire. The idea of using instructor cues is unprotectible, but even stock concepts can be protectible to the extent that their selection, coordination, and arrangement "reflect[ ] a particular expression of ideas." Williams v. A & E Television Networks, 122 F.Supp.3d 157, 162 (S.D.N.Y. 2015). Here, the issue is whether the 30 Bird Manual copies the look and arrangement of the Axzo Manual's instructor cues. It is an appropriate element to consider in evaluating total concept and feel. For the same reasons and to the same extent, the Court may consider the element of exam objectives.
Having determined which of the salient individual elements are protectible, the Court now turns to the task of "comparing the contested [work's] `total concept and overall feel' with that of the allegedly infringed work." Gaito, 602 F.3d at 66 (quoting Tufenkian, 338 F.3d at 133). In doing so, the Court may not rely on amorphous notions of "feel" and "look," but must instead "identify precisely the particular [creative] decisions—original to the plaintiff and copied by the defendant[s] —that might be thought to make the [works] similar in the aggregate." Tufenkian, 338 F.3d at 134.
The Court concludes that a reasonable observer could not find the Axzo Manual and 30 Bird Manual substantially similar. Although the Court is persuaded that the Axzo Manual contains protectible expression, the Court is not convinced that the 30 Bird Manual has copied such expression to the point of substantial similarity. In arguing to the contrary, Logical does not assert that the 30 Bird Manual copied any particular exercise, mimicked any particular topic, or replicated any particular review question.
This is problematic because, as the Court has already noted, there is authority for the proposition that book designs are unprotectible ideas. In targeting the 30 Bird Manual's design and layout in the
This is not to say that the selection, arrangement, and coordination of substantive elements is irrelevant to the analysis. As discussed above, creative choices can be made with respect to the selection and arrangement of text, graphics, and topics within a book. Indeed, the substantive content of an instructional text must be expressed through layout and design choices. But the Court cannot simply disregard content and compare the abstract design principles on which the manuals are based. Just as it would be difficult to conclude that one wrongfully copied another's chart without considering the content of each chart, the Court cannot analyze whether Defendants wrongfully copied the total concept and feel of the Axzo Manual without considering the substantive content of each manual. When the issue is framed in this way, there is no reasonable inference of substantial similarity.
Some examples may be helpful. Regarding the two-column tables, while Logical lists several design elements that make the 30 Bird Manual's tables look similar to the Axzo Manual's, omitted from its discussion is the fact that the content of the tables— i.e., the instructions, the explanatory content, and graphics—are largely dissimilar. The tables displayed in Section II(a)(v) above are illustrative. Both tables instruct students on certain basic components of the Excel interface. Although there is some minor overlap in their respective directions, as a whole the tables diverge in their expression of and emphasis on certain concepts. The 30 Bird Manual highlights the column and row numbers and the quick access toolbar, while the Axzo Manual highlights the title bar, illustrations tab, and status bar. In explaining the ribbon tab, the Axzo Manual states: "By default, Home is active." ECF No. 74-2 at 366. The 30 Bird Manual states: "This is the large area of buttons, lists, menus, and palettes at the top of the window. It's organized into tabs (File, Home, Insert, and so on), and within in [sic] a tab, into groups." Id. at 171. The tables also differ as to which graphics they include: the Axzo Manual's only graphic is of the title bar, while the 30 Bird Manual has graphics of a "screen tip" and the quick access toolbar. These differences in the tables only increase in later chapters, as each manual creates its own hypothetical scenarios to test students in the applicable concepts. Compare, e.g., id. at 195-96, with id. at 383.
When substantive content is considered along with the design features, the manuals' tables do not convey substantially similar expression. It is akin to multiple-choice questions: one instructor is free to use the same format to test students in the same topics as another instructor, so long as he does not copy the particular wording and answers of the other. See Nat'l Conference of Bar Exam'rs, 458 F.Supp.2d at 259.
The same can be said of the 30 Bird Manual's overall arrangement of topics and organization of each chapter. Similarities in chapter arrangement or structure matter less than the expressive content contain therein. Cf. Morrison v. Solomons, 494 F.Supp. 218, 225 (S.D.N.Y. 1980) ("The significant question is not whether titles of subchapters and chapters are the same but rather whether the explanation or treatment of the subject matter within them is substantially similar."). On the topic of functions, for example, the manuals display different graphics and provide different explanations, exercises, and review questions. Indeed, the Axzo Manual provides instruction on several functions that are omitted
The Court arrives at the same conclusion with respect to the total concept and feel of the works as a whole. The similarities that exist between these manuals largely relate to unprotectible ideas or minor elements like layout and arrangement. In terms of substantive content, Logical fails to identify any significant similarities between the manuals, and the Court's review does not suggest otherwise. Because the overall expression contained in the manuals is so dissimilar—even considering substantive content and design together— the Court concludes, as a matter of law, that the manuals cannot be found substantially similar.
Accordingly, the Court concludes that a reasonable trier of fact could not find in Logical's favor on the element of wrongful copying, and Defendants are entitled to summary judgment on the copyright infringement claim.
For the reasons discussed above, Defendants' motion for summary judgment (ECF No. 72) is GRANTED IN PART. With respect to Logical's claim for copyright infringement, Defendants' motion is granted, but with respect to Defendants' counterclaim for attorney's fees, their motion is denied without prejudice.
IT IS SO ORDERED.
