When creating a new derivative work based on another work, there must be “sufficient nontrivial expressive variation” in the new work in question, so as “to make it distinguishable from [an] underlying work in some meaningful way.” Schrock v. Learning Curve Int'l, Inc., 586 F.3d 513, 521 (7th Cir. 2009); see also Nova Design Build, Inc. v. Grace Hotels, LLC, 652 F.3d 814, 818 (7th Cir. 2011). Outright copying, however, obviates originality for purposes of copyright. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991).

In UIRC-GSA Holdings, LLC v. William Blair & Co., L.L.C., Nos. 23-1527 & 23-2566, — F.4th — (7th Cir. Jan. 12, 2024), the Seventh Circuit affirmed that UIRC-GSA Holding's bond offering documents were not eligible for protection because, rather than having been drafted from scratch, much of the language came from offering documents prepared by the Idaho Housing and Finance Association.

            UIRC did not independently create most of the language in the documents at issue. Instead, it copied much of the language from the Idaho materials. We agree with the district court that the language UIRC did draft lacks the creative expression required for copyright protection. It is either facts, fragmented phrases, or language dictated solely by functional considerations.

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            After excising the copied language, what remains is a mixture of fragmented phrases, facts, and language dictated solely by functional considerations. Fragmented phrases and facts are not copyrightable. Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 547 (1985) (facts); Alberto-Culver Co. v. Andrea Dumon, Inc., 466 F.2d 705, 711 (7th Cir. 1972) (short phrases and expressions). Language dictated solely by function is not copyrightable either. Publ'ns Int'l, Ltd. v. Meredith Corp., 88 F.3d 473, 480, 481 (7th Cir. 1996).

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            An author's decision to phrase things one way may in some cases be evidence of creative expression. In American Dental Ass'n v. Delta Dental Plans Ass'n, for example, the creativity in a taxonomy of dental procedures was the author's classification and explanation after “the fundamental scheme ha[d] been devised.” 126 F.3d 977, 979 (7th Cir. 1997). But in American Dental, and unlike here, functional demands did not constrain the taxonomist's prosaic choice.

The Court also affirmed a $1.5M attorneys' fee against UIRC under 17 U.S.C. § 505 because the defendant prevailed against UIRC's copyright claim.

The attorneys at Thomas P. Howard, LLC litigate copyright cases nationwide including in Colorado.