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Copyright: Consultant Training Materials

By Elizabeth T Russell • Mar 24th, 2009 • Category: Intellectual Property Law, Newest Post
Situation Management Systems, Inc. v. ASP Consulting LLC was decided by the First Circuit Court of Appeals on March 19, 2009. The decision has implications far beyond the dispute of the parties; it affects the copyright expectations of the more than $100 billion management training industry in the United States. Bottom line: this decision supports consultants seeking to protect their training materials under US Copyright Law.
Here’s what happened.
Situation Management Systems (SMS) provided consulting services aimed at improving employee communication and negotiation skills in the workplace.  As part of its services, SMS developed a series of training materials.
Three SMS employees left the company, founded their own consulting company (ASP) and developed…hmm…strikingly similar training materials.
SMS sued ASP for copyright infringement.
The district court found that ASP had copied SMS’ materials. The district court determined, however, that there was no copyright infringement because the SMS materials were not copyrightable in the first place.
Let’s pause for a basic concept. Material doesn’t qualify for copyright protection unless it is sufficiently “original.” In this context, “originality” means that the author created the material independently, and that the material possesses at least some minimal degree of creativity. By way of example: the white pages of the phone book are not sufficiently original because there’s no creativity in listing people’s names in alphabetical order next to their phone numbers. But the yellow pages are sufficiently original because someone had to exercise at least a little judgment in laying out the ads and determining how the pages would look. The originality threshhold is “not particularly rigorous,” but it does exist.
Back to the SMS case.
The district court said SMS’ training materials did not satisfy the originality requirement because they were filled with “generalizations, platitudes, and observations of the obvious,” that they contain “not-so-stunning revelations” and teach “[a]t their creative zenith…common-sense communication skills.”
The First Circuit said the district court was wrong, because its analysis was “obviously tainted by its own subjective assessment of the works’ creative worth” — which has nothing to do with the legal test for originality.
The First Circuit found that the SMS materials “easily” satisfied the test for originality because they contained text, flowcharts and illustrations explaining techniques for communication and negotiation.  The First Circuit also noted that, while processes and systems themselves are not eligible for copyright protection, a description of a process or system can be copyrightable.
So in this case, the SMS materials were found to be copyrightable.

Elizabeth T Russell is is a solo practitioner. Russell Law helps businesses protect their most important assets by focusing on intellectual property issues, specifically copyright, trademark and digital business. Elizabeth also enjoys a vibrant arts and entertainment law practice. You can contact Elizabeth at: Phone: (608) 285-5007 E-mail: [email protected] Website: www.erklaw.com Address: 49 Kessel Court, Suite 200, Madison WI 53711
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