Thin to Win

On April 10, 2013, in Copyrights, by Brian A. Hall

This is not an example of UnIP, but instead an example of something being challenged as UnIP, at the summary judgment stage, only to be found it may constitute protectable intellectual property.  The United States District Court for the District of Arizona was tasked with determining whether a manual is entitled to copyright protection.

Plaintiff, Honeywell International, Inc. (“Honeywell”), manufactures and sells various products used in the aerospace industry.  Most relevant to this case, it also creates and then licenses repair and maintenance manuals for the auxiliary power units it sells.  Plaintiff registered with the United States Copyright Office its manuals, including the one in particular at issue in this case, namely 131-9A Manual.  Defendant, Western Support Group, obtains and distributes aircraft manuals for a service fee.  Plaintiff sued for copyright infringement.  Defendant claimed it did not infringe, and that such manuals are not entitled to copyright protection.  Defendant moved for summary judgment.  In doing so, Defendant argued that, as a matter of law, aircraft maintenance manuals in general, and the 131–9A Manual, in particular, are not entitled to copyright protection because: “(1) manuals describe “procedures for checking and repairing aircraft parts,” which cannot be copyrighted under 17 U.S .C. § 102(b); (2) the “identification of the aircraft parts to which each check and repair procedure applies are simply facts”; and (3) manuals are not “original” works within the meaning of the Copyright Act because the publication, distribution, and “format and content of the manuals” is dictated by federal regulations.”

The Court relied heavily upon the Supreme Court case of Feist Publ’n, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991) in determining “whether any portion of an aircraft maintenance manual can ever possess the requisite originality to enjoy copyright protection, no matter how “thin” the protection may be.”  Defendant argued that is was not possible for Plaintiff to creatively express the underlying facts and procedures by exercising any discretion in the choosing, ordering, and/or arranging of the facts and procedures in the manual because the FAA dictates the content.  The Court disagreed.  It recognized that the FAA “does not foreclose the possibility that the author of an aircraft maintenance manual can exercise at least some creative control over the choosing, ordering, and/or arrangement of facts and procedures included in an aircraft maintenance manual.  Where, like under Appendix A, the author may have at least a “slight amount” of creative control over some portions of an aircraft maintenance manual, the Court cannot find a lack of originality as a matter of law.”

In sum, the Court again resorted to the well-known copyright principles requiring independent creation by the author with a minimal degree of creativity.  Thus, the Court held that “as a matter of law, aircraft maintenance manuals can possess sufficient originality to allow copyright protection, thin as it may be.”

I recall my Spring Break days, many years ago, when the phrase “skin to win” used to be shouted, by others of course, and not with my approval ;).  It appears, in the world of copyright infringement, thin to win seems to be the maxim, at least at summary judgment.  We will see what ultimately happens in this case, but for now, thin is IP.

Honeywell Int’l, Inc. v. W. Support Group, Inc., CV 12-00645-PHX-JAT, 2013 WL 1367355 (D. Ariz. Apr. 4, 2013).


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