IP Law Daily, COPYRIGHT—M.D. La.: Exam prep company’s copying of 14 of competitor’s sample questions was de minimus, (Apr 8, 2014)

By Cheryl Beise, J.D.

An exam prep company’s use of 14 of a competitor’s sample test questions did not constitute actionable copyright infringement because the amount of material copied was de minimus, representing only 1.3% of the copryighted work, the federal district court in Baton Rouge has held (Louisiana Contactors Licensing Service, Inc. v. American Contractors Exam Services, Inc., April 7, 2014, Brady, J.).

Louisiana Contractors Licensing Service, Inc. (“LCL”) and American Contractors Exam Services, Inc. (“ACES”) are competitors in the business of preparing contractors for state licensing exams, including the Louisiana state licensing exam.

LCL alleged that ACES committed willful copyright infringement by using 14 sample exam questions that were identical to questions in LCL’s copyrighted study guides, except that ACES’s questions were in fill-in-the-blank format, whereas the LCL’s questions appeared in multiple choice format.

ACES argued that the court should not consider LCL’s evidence of the copyrighted questions because it was filed late and that any unauthorized use of LCL’s questions was non-actionable because it was both de minimis and amounted to fair use.

Late-filed evidence. The court first determined that it would consider ACL’s late-filed evidence of the sample exam questions in ruling on the motion for summary judgment. LCL had requested the documents from the U.S. Copyright Office on August 28, 2013, but it did not receive material until December 13, 2013. Although the copyrighted materials were produced two months after the close of discovery, ACES was not prejudiced by the delay because LCL’s counsel had provided copies of the disputed questions in early October.

De minimis copying. To establish copyright infringement, a plaintiff must prove: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. The Fifth Circuit has formulated a two-step process for determining whether actionable copying has occurred. The first question asks whether the alleged infringer actually used the copyrighted material. The second question asks whether a “substantial similarity” exists between the copyrighted work and the accused work.

LCL maintained that ACES replicated 14 of its copyrighted sample questions. ACES disputed the number, but argued that, even assuming the questions were copied and were “identical,” the alleged infringement was de minimis.

De minimus copying is not actionable because it cannot lead to a finding of substantial similarity. To establish that an infringement is de minimis, the alleged infringer must demonstrate that the copying of the protected material is so trivial “as to fall below the quantitative threshold of substantial similarity,” the court said.

For guidance on the issue of de minimis copying, court turned to the Ninth Circuit case of Newton v. Diamond, 388 F.3d 1189 (9th Cir. 2003). In Newton, a composer argued that a musical group infringed his copyrighted composition by using a six-second, three-note sequence from his song over forty times in various renditions of the infringing work. In affirming the district court’s summary judgment determination of de minimis copying, the Ninth Circuit held that “no reasonable juror could find the sampled portion of the composition to be a quantitatively or qualitatively significant portion of the composition as a whole.” The three-note sequence appeared only once in the copyrighted composition, and it only comprised six seconds, or approximately two percent, of the entire work. The copied portion also was not qualitatively more significant than any other portion of the original work.

The facts of this case were similar to those in Newton, according to the court. Even assuming that ACES actually copied 14 questions, the amount copied only represented approximately 1.3% of the total questions in LCL’s copyrighted materials, even smaller than the 2% copying found to be de minimis in Newton.

In addition, there was no indication that the copied questions were any more significant than the 1,069 other questions in the copyrighted materials. The 14 questions were not summary questions, “wrap up” questions, or otherwise unique in some way, but rather each question “was merely another question in the overall mass of 1,083 copyrighted questions.”

Because the 14 questions at issue constituted a “simple, minimal, and insignificant” portion of the entire copyrighted material, the court concluded that ACES’s alleged copying of them as matter of law could not be deemed anything more than de minimis, and thus, not actionable copying.

The case is No. 12-560-JJB-RLB.

Attorneys: Franklin J. Foil (Franklin J. Foil, Attorney at Law) for Louisiana Contractors Licensing Service, Inc. Scott D. Wilson (Scott D. Wilson, APLC) for American Contractors Exam Services, Inc.

Companies: Louisiana Contractors Licensing Service, Inc.; American Contractors Exam Services, Inc.

Cases: Copyright LouisianaNews