When the uncopyrightable subject matter is very narrow, so that the topic necessarily allows only a limited number of interpretations, to permit copyrighting would mean that a party, by copyrighting a mere handful of forms, could exhaust all possibilities of future use of the substance. This is true when the copyrighted style springs from the substance and contains no creative authorship. In such circumstances it does not seem accurate to say that every particular form of expression comes from the subject matter. However, it is necessary to say that the subject matter would be appropriated by permitting the copyrighting of its expression.
The owner had copyrighted a set of rules for a sales promotional sweepstakes style contest. He sued the alleged infringer, claiming that it had infringed the copyright by copying, almost precisely, one of the owner's rules. The alleged infringer filed a motion for summary judgment in which it denied that the rule was copyrightable material and further denied access. The district court granted the alleged infringer's motion. On appeal, the court determined that an issue of fact existed as to whether or not the alleged infringer had received a copy of the owner's rules, which had been mailed to the alleged infringer. However, on the issue of whether the substance of the contest was copyrightable, the court found that the subject matter embraced by the owner's rule was so straightforward and simple that permitting the copyrighting of its expression would appropriate it. Thus, the copyright did not extend to the subject matter at all and, as such, summary judgment was appropriate.
Were the set of rules for the sales promotional sweepstakes style contest considered copyrightable?
The district court, following an earlier decision, Gaye v. Gillis, D.Mass., 1958, 167 F. Supp. 416, took the position that since the substance of the contest was not copyrightable, which is unquestionably correct, Baker v. Selden, 1879, 101 U.S. 99, 25 L. Ed. 841; Affiliated Enterprises v. Gruber, 1 Cir., 1936, 86 F.2d 958; Chamberlin v. Uris Sales Corp., 2 Cir., 1945, 150 F.2d 512, and the substance was relatively simple, it must follow that plaintiff's rule sprung directly from the substance and "contains no original creative authorship."This does not follow. Copyright attaches to form of expression, and defendant's own proof, introduced to deluge the court on the issue of access, itself established that there was more than one way of expressing even this simple substance. Nor, in view of the almost precise similarity of the two rules, could defendant successfully invoke the principle of a stringent standard for showing infringement which some courts apply when the subject matter involved admits of little variation in form of expression.
Nonetheless, the court here holds for the defendant. When the uncopyrightable subject matter is very narrow, so that "the topic necessarily requires," if not only one form of expression, at best only a limited number, to permit copyrighting would mean that a party or parties, by copyrighting a mere handful of forms, could exhaust all possibilities of future use of the substance. In such circumstances it does not seem accurate to say that any particular form of expression comes from the subject matter. However, it is necessary to say that the subject matter would be appropriated by permitting the copyrighting of its expression. We cannot recognize copyright as a game of chess in which the public can be checkmated.