Free Order Setting Hearing on Motion - District Court of Colorado - Colorado

Case 1:01-cv-00383-JLK

Document 55

Filed 06/20/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge John L. Kane Civil Action No. 01-cv-383-JLK KATHLEEN TODD, Plaintiff, v. MONTANA S ILVERS MITHS , INC.; ROD' WES TERN PALACE, INC., AND CORRAL S WES T RANCHWEAR, INC. Defendants.

MINUTE ORDER Judge John L. Kane ORDERS Oral argument on Defendant s ' M otion for Summary Judgment is set for 10:00 a.m. Friday, July 15, 2005 in the Alfred A. Arraj U.S. D is t rict Courthouse, 901 19th St. Denver, Colorado, 80294, Courtroom A802. Counsel should come prepared to address the following issues: 1. Plaintiff claims that her copyright " resides in the particular way in which the elements are formed, placed, balanced and harmonized together." (Pl.' Resp. to Def.' M ot s s for Summ. J. re: Absence of Evidence at 14.) There is substantial literature on just what cons titutes the necessary quantum of creativity necessary for copyrightability, but does this creativity need to manifest itself in a t angible element of the work, or is it sufficient for Plaintiff' work to have a sufficiently creat ive " s gestalt?" The Supreme Court in Feist Publ' Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340 (1991) explicitly granted protection ns, to the p articular " selection and arrangement" of a work. Although Feist dealt with a compilation and Plaintiff has not argued her jewelry is copyright able as a compilation, is this type of protection nonetheless applicable? Mitel v. Iqtel, 124 F.3d 1366 (10th Cir. 1997), makes clear that the abstraction2. filtration-comparison test need not be rigorously applied in every case. It is a " tool" which, under the right circumstances, may be " useful" in helping courts compare similarities which would otherwise be difficult to quantify. Mitel at 1371, n.4; Country Kids ` City Slicks N

Case 1:01-cv-00383-JLK

Document 55

Filed 06/20/2005

Page 2 of 2

v. Sheen, 77 F.3d 1280, 1284 (10th Cir. 1996). Accordingly, the Court is not required to reduce mechanically Plaintiff' jewelry to a few bits of twisted metal. Nevertheles s , s ome s degree of filt rat ion must be performed so that Court may confine its copyright analysis to legally protectable elements in a work. Country Kids, 77 F.3d at 1285. Where, according to the parties, is the line? Assuming t he elements of form, placement, balance and harmony in Plaintiff' work s are copyrightable, how should the Court distinguish such expression from the work' s unprotectable p ublic domain elements, scenes á faire, etc., if any, as required by Country Kids? Plaintiff may have been follow ing her individual aesthetic vision in her choice of form, placement, balance, and harmonization, but the final w ork still in many respects resembles a section of public domain barbed-wire. Would Defendant violate Plaint iff' s cop y right if they simply duplicated a section of loosely twisted, small barbed, 10 gauge barbed-wire which was admittedly in the public domain? Similarly, if the Defendant copied nothing but public domain elements existing in the Plaintiff' work, exactly how would that s infringe on the Plaintiff' copyright? s Copies of this M inute Order were transmitted electronically:

Dated: June 20, 2005

GREGORY C. LANGHAM , CLERK s/ Deputy Clerk