Business consultants, trainers and others developing training materials and similar business documents must not rely too heavily on prior works of others as templates, even where the copied material consists largely of seemingly unoriginal, general and obvious remarks. A new influential decision has held that copyright law will protect such prior works, and that “neither the works’ absolute novelty nor their creative value determines whether they are ‘original’ for purposes of copyright protection.” Situation Man. Sys., Inc., v. Asp. Consult. LLC (1st Cir. 2009) (The First Circuit is the federal Appellate Court for MA, ME, NH, RI and Puerto Rico -- one level below the United States Supreme Court).

The suit involved two competitor consulting companies and their training materials for teaching effective communication and negotiation in the workplace. However, the case has much broader impact, as other intervening participants claimed the lower court ruling would have put at risk the more than $100 billion management training industry. The defendant company was started by former employees of the plaintiff who were involved in creating their former employer’s materials. Common customers noted the “striking similarity” of the new company’s training materials, and the plaintiff sued for copyright infringement.

The starting point in any copyright case is to determine whether, and to what extent, the plaintiff’s work is one of “original expression” subject to copyright protection. Then, the court must compare the protected material to the defendant’s work actually copied from plaintiff to see if it is “substantially similar.” The lower court’s error in this case was to discount the vast majority of the plaintiff’s training materials as non-protectable based on the Judge’s assessment that they “exemplif[ied] the sorts of training programs that serve as fodder for sardonic workplace humor that has given rise to the popular television show The Office and the movie Office Space. They are aggressively vapid -- hundreds of pages filled with generalizations, platitudes, and observations of the obvious.”

Not disagreeing with the trial Judge’s subjective views, the First Circuit held that the Judge applied the wrong standard as to the originality question. The materials were original enough for copyright law, the First Circuit held, which requires only that the plaintiff independently created them. The level of creativity required for that independent work is “extremely low; even a slight amount will suffice.” Here, there was no question the plaintiff originated its own training materials, and they included enough original “text, flowcharts, and illustrations explaining techniques for communication and negotiation,” that met the standard, regardless of the perceived vapid quality thereof.

The lower court also erred by discounting the materials as outside the copyright law since they dealt with functional teaching processes, too afar from traditional copyright material such as books, movies or art. While the teaching processes described by the plaintiff were not ideas protectable by the copyright laws, the “creative choices in describing those processes and systems, including the works’ overall arrangement and structure, are subject to copyright protection,” the First Circuit held.

What this decision means is that companies and individuals risk exposure when copying for commercial purposes any training materials or other commercial business materials from competitors or other sources, even if the copyist concludes that the copied material only comprises generalizations, platitudes, or observations of the obvious. It also means that true originators of such works (who should register their copyrighted materials) may effectively police and prevent piracy of such materials – even “aggressively vapid” ones.