Civility Experts Worldwide v. Molly Manners, LLC

Filing 246

ORDER granting 85 Motion for Partial Summary Judgment. Civility Experts claim of copyright infringement (Count 3) is DISMISSED as against Molly Manners; and On or before March 21, 2016, Civility Experts shall file either: a notice of voluntary dismissal of Knowles, Combs, and/or Virta-Gupta, or a notice stating which of these Defendants it has elected not to voluntarilydismiss at this time. Ordered by Judge William J. Martinez on 03/07/2016.(cthom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 15-cv-0521-WJM-MJW
CIVILITY EXPERTS WORLDWIDE,
Plaintiff and Counterclaim Defendant,
and
CATHY HULSHOF,
APRIL ROLLINS, and
TANYA MACLIN,
Intervenor Plaintiffs and Counterclaim Defendants,
v.
MOLLY MANNERS, LLC,
Defendant and Counterclaim Plaintiff,
and
FELICIA KNOWLES,
SHANNON COMBS, and
MONIKA VIRTA-GUPTA,
Defendants.

ORDER GRANTING DEFENDANT MOLLY MANNERS’ EARLY MOTION FOR
PARTIAL SUMMARY JUDGMENT

Plaintiff Civility Experts Worldwide (“Civility Experts”) sues Defendant Molly
Manners, LLC (“Molly Manners”) for copyright infringement and related causes of
action. (See ECF No. 47.) Currently before the Court is Molly Manners’ Early Motion
for Partial Summary Judgment (“Motion”) attacking only Civility Experts’ copyright
infringement claim. (ECF No. 85.) For the reasons explained below, Molly Manners’

Motion is granted, but, contrary to Molly Manners’ view, this outcome does not
automatically dispose of Civility Experts’ claim for breach of the contract.
I. LEGAL STANDARD
Summary judgment is warranted under Federal Rule of Civil Procedure 56 “if the
movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248–50 (1986). A fact is “material” if, under the
relevant substantive law, it is essential to proper disposition of the claim. Wright v.
Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001). An issue is “g enuine” if
the evidence is such that it might lead a reasonable trier of fact to return a verdict for
the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).
In analyzing a motion for summary judgment, a court must view the evidence
and all reasonable inferences therefrom in the light most favorable to the nonmoving
party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). In
addition, the Court must resolve factual ambiguities against the moving party, thus
favoring the right to a trial. See Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th
Cir. 1987).
II. FACTS1
The following facts are undisputed unless otherwise noted.
1

Some of the parties’ summary judgment exhibits were filed under Restricted Access,
Level 1. See D.C.COLO.LCivR 7.2. To the extent a Restricted exhibit is quoted or summarized
below, the Court has determined that the portion quoted or summarized does not meet the
standards for Restricted Access set forth in D.C.COLO.LCivR 7.2(c)(2)–(4).

2

Civility Experts “is in the business of providing civility training solutions.” (ECF
No. 85 at 2, ¶ 2.) 2 Civility Experts offers, among other things, lesson manuals for
teaching manners to children. (Id.) Three of those lesson manuals are at issue here:
Macaroni and Please (designed for ages 3–7), Confidence is Cool (designed for ages
8–12), and Proud to Be Polite (also designed for ages 8–12) (collectively, “Civility
Experts’ Lessons”). (See ECF No. 86-6 at 1; ECF No. 86-7 at 1; ECF No. 86-8 at 1.)
Civility Experts has registered copyrights for each of these Lessons. (ECF No. 115
at 5, ¶¶ 1–3.)
Molly Manners was formed in 2010, and is also in the business of teaching
manners to children. (ECF No. 85 at 2, ¶ 4.) Molly Manners purchased Civility Experts’
Lessons sometime in 2011. (Id. at 3, ¶¶ 6–9.) Molly Manners claims it also purchased
permission to distribute Civility Experts’ Lessons to Molly Manners’ licensees. (Id.
¶¶ 6–7.) Civility Experts denies this, but it appears undisputed that Molly Manners
incorporated at least portions of Civility Experts Lessons into three of Molly Manners’
own lesson manuals. (Compare id. at 2, ¶ 4 with ECF No. 115 at 3, ¶ 4.)
“In the spring of 2013, a dispute arose wherein [Civility Experts] accused Molly
Manners of copyright infringement.” (ECF No. 85 at 4, ¶ 11.) Molly Manners denied
the accusation. (Id.) In April 2013, Civility Experts and Molly Manners entered into a
Settlement Agreement (without litigation, apparently). (Id. ¶ 12.) Through the
Settlement Agreement, Molly Manners agreed to
remove all references to [Civility Experts’] copyright[ed]
2

All ECF page citations are to the page number in the ECF header, which does not
always match the document’s internal pagination.

3

materials from the main/home website including . . .
verbatim lesson names and will stop including such content,
in whole or in part, in Molly Manners programs, except for
those certain existing licensees of Molly Manners previously
granted usage rights who may continue to use such
copyright[ed] content . . . . [Civility Experts’] copyright[ed]
content will not be extracted, distributed, or duplicated, in
print, electronically, or verbally, in whole or in part, for any
purpose by Molly Manners.
(ECF No. 86-10 ¶ 1.)
Molly Manners says that it then “modified its teacher guides and materials” to
remove any of Civility Experts’ copyrighted content. (ECF No. 85 at 4, ¶ 14.) Civility
Experts denies this and alleges that three Molly Manners lesson manuals continue to
infringe Civility Experts’ copyrights, and are also a violation of the Settlement
Agreement. (See ECF No. 47 ¶¶ 54, 90–107; ECF No. 86-36 at 8–23; ECF No. 115 at
6–11, ¶¶ 1–13.) The three relevant Molly Manners lesson manuals are: Nice is Right
(aimed at ages 3–6), Kool to Be Kind (aimed at ages 7–11), and The Young
Sophisticate (aimed at ages 12–17) (collectively, “Molly Manners’ Lessons”). (See ECF
No. 86-11 at 1; ECF No. 86-15 at 1; ECF No. 86-24 at 1.)
In this lawsuit, Civility Experts accuses Molly Manners of breaching the
settlement agreement (Count 1), and accuses Molly Manners and some of its licensees
of tortious interference with prospective economic advantage (Count 2), copyright
infringement (Count 3), unfair competition (Count 4), and false advertising (Count 5).3
(ECF No. 47 ¶¶ 90–131.)

3

Civility Experts erroneously labels this false advertising claim as a second Count 4.
(See ECF No. 47 at 20.)

4

III. CONSIDERATIONS REGARDING EARLY SUMMARY JUDGMENT
The undersigned permits an early motion for summary judgment if filed “within 30
days after entry of the initial scheduling order,” and if the motion “presents a substantial
and well-supported argument for significantly reducing the claims or issues in the case.”
WJM Revised Practice Standard III.E.2. Civility Experts interprets “within 30 days after
entry of the initial scheduling order” to mean that a party may file an early summary
judgment motion no earlier than the date on which the scheduling order is entered.
(ECF No. 115 at 12–13.) Because Molly Manners filed the present Motion on August
14, 2015, and the scheduling order did not enter until September 29, 2015, Civility
Experts argues that Molly Manners’ Motion should be denied as procedurally improper.
(Id.)
Civility Experts’ interpretation of Practice Standard III.E.2 is incorrect. “[W ]ithin
30 days after entry of the initial scheduling order” only places limits on how late a party
may file an early summary judgment motion, not how early. See MPVF Lexington
Partners, LLC v. W/P/V/C, LLC, ___ F. Supp. 3d ___, ___ n.1, 2015 W L 5444297, at *1
n.1 (D. Colo. Sept. 16, 2015). The Court accordingly rejects Civility Experts’ argument
that Molly Manners did not file its Motion at the proper time.
Nonetheless, the Motion must “present[] a substantial and well-supported
argument for significantly reducing the claims or issues in the case.” WJM Revised
Practice Standard III.E.2. In this case, it does. Civility Experts’ copyright infringement
claim (Count 3) will likely be a major portion of this case. Furthermore, Civility Experts
specifically links its unfair competition and false advertising claims (Counts 4 and 5) to

5

its copyright infringement allegations. (See ECF No. 47 ¶¶ 118, 121–22, 127, 129–30.)
Early summary judgment on the question of copyright infringement is therefore
appropriate.
IV. COPYRIGHT INFRINGEMENT STANDARD
The basic elements of a copyright claim are twofold: “(1) ownership of a valid
copyright, and (2) copying of constituent elements of the work that are original.” Feist
Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991).
The second element is itself broken down into multiple inquiries. It begins with
an analysis of “copying,” meaning sufficient proof that the defendant actually “used the
plaintiff’s material as a model, template, or even inspiration,” as opposed to
coincidentally creating the same or a similar work. 4-13 Nimmer on Copyright
§ 13.01[B]; see also Alan Latman, “Probative Similarity” as Proof of Copying: Toward
Dispelling Some Myths in Copyright Infringement, 90 Colum. L. Rev. 1187, 1189 (1990)
(“‘copying’ . . . is the obverse of independent creation”).
A plaintiff may attempt to prove copying through “direct evidence.” Gates
Rubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d 823, 832 (10th Cir. 1993). Direct
evidence usually requires “a witness to the physical act of copying.” 4-13 Nimmer on
Copyright § 13.01[B] (footnote omitted); see also American Bar Association, Model Jury
Instructions: Copyright, Trademark, and Trade Dress Litigation § 1.5.2 (2008) (“An
example of direct evidence would be an admission by defendant that part or all of the
work was copied. Direct evidence may also be the credible testimony of a witness who
saw the work being copied.”). But “[d]irect proof of copying is rare,” so “plaintiffs will

6

typically rely on the indirect method of proof.” Gates Rubber, 9 F.3d at 833.
The indirect method requires (1) evidence that the defendant had access to the
copyrighted work, and (2) “probative similarities between the copyrighted material and
the allegedly copied material.” Id. at 832. “Probative similarity” is also sometimes
phrased as “substantial similarity.” See Country Kids ’N City Slicks, Inc. v. Sheen, 77
F.3d 1280, 1289 n.4 (10th Cir. 1996). These terms, however, are not properly
interchangeable. Probative similarity is part of the inquiry into whether, as a factual
matter, it is more likely than not that the defendant copied from the plaintiff’s work:
“similarities that, in the normal course of events, would not be expected to arise
independently in the two works are probative of defendant’s having copied as a factual
matter from plaintiff’s work.” 4-13 Nimmer on Copyright § 13.01[B]. Substantial
similarity, by contrast, “is a mixed question of fact and law,” O’Neill v. Dell Pub. Co., 630
F.2d 685, 687 (1st Cir. 1980), 4 and accommodates the fact that “[n]ot all copying . . . is
copyright infringement,” Feist, 499 U.S. at 361. Substantial similarity thus addresses
the ultimate question on liability: assuming the defendant copied at least some amount
of the plaintiff’s work, did the defendant copy “protectable elements” of the plaintiff’s
work, and do those “protectable elements comprise a substantial part of the plaintiff’s
[work] when it is considered as a whole”? Gates Rubber, 9 F.3d at 833; see also
Country Kids, 77 F.3d at 1284 (“A finding that [the defendant] copied some aspect of
[the plaintiff’s work], however, would not end the court’s inquiry, as liability for copyright

4

See also Mitel, Inc. v. Iqtel, Inc., 124 F.3d 1366, 1370 (10th Cir. 1997) (“whether the
elements copied by the defendant are protected by copyright” is “a mixed question of law and
fact”).

7

infringement will attach only where protected elements of a copyrighted work are
copied. To impose such liability, the court must find substantial similarity between
those aspects of [the plaintiff’s work] which are legally protectable and the [defendant’s
work].” (citations omitted)).
What, then, are the protectable elements? To answer this question, the Tenth
Circuit frequently employs the “abstraction-filtration-comparison” test, also sometimes
known as the “successive filtration” test. Country Kids, 77 F.3d at 1284 & n.5. “At the
abstraction step, [courts] separate the ideas (and basic utilitarian f unctions), which are
not protectable, from the particular expression of the work.” Id. at 1284–85. This stems
from two established propositions. First, “facts are not copyrightable.” Feist, 499 U.S.
at 344. Second, “[i]n no case does copyright protection . . . extend to any idea,
procedure, process, system, method of operation, concept, principle, or discovery,
regardless of the form in which it is described, explained, illustrated, or embodied in
such work.” 17 U.S.C. § 102(b). Thus, “[t]he copyright is limited to those aspects of the
work—termed ‘expression’—that display the stamp of the author’s originality.” Harper &
Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 547 (1985).
Given these exclusions for facts, idea, concepts, and the like, demonstrating
protectable expression in nonfiction literature, and particularly instructional literature, is
comparatively more difficult than demonstrating protectable expression in fiction. Cf.
Feist, 499 U.S. at 349 (“copyright in a factual compilation is thin”); Glass v. Sue, 2010
WL 4274581, at *3 (C.D. Cal. Oct. 22, 2010) (“In a f actual work, such as a technical
manual, there is typically a very narrow range of expression. Therefore, copyright

8

protection is narrow . . . .”). Such expression may nonetheless include original
phrasing of facts and ideas. Feist, 499 U.S. at 349–50. It may also include “an original
selection or arrangement” of facts or ideas. Id. at 348; cf. Enter. Mgmt. Ltd., Inc. v.
Warrick, 717 F.3d 1112, 1119 (10th Cir. 2013) (in a case reg arding visual depiction of
unprotectable concepts, courts “must focus on whether [the plaintiff] has selected,
coordinated, and arranged the elements of her diagram in an original way” (internal
quotation marks omitted)).
Following the abstraction analysis, a court must “filter out the nonprotectable
components of the product from the original expression.” Country Kids, 77 F.3d at
1285. When nonfiction works are at issue, as here, such filtering often involves the
doctrines of “merger” and “scenes a faire.”5
“Under the merger doctrine, copyright protection is denied to expression that is
inseparable from or merged with the ideas, processes, or discoveries underlying the
expression.” Gates Rubber, 9 F.3d at 838. The merger doctrine is considered “a
prophylactic device to ensure that courts do not unwittingly grant protection to an idea
by granting exclusive rights to the only, or one of only a few, means of expressing that
idea.” Id. (emphasis added).
The scenes a faire doctrine is a particular extension of the idea that matters in
the public domain cannot be copyrighted. Under scenes a faire, courts “deny protection
to those expressions that are standard, stock, or common to a particular topic or that

5

The truly proper spelling of this French phrase includes diacritical marks, i.e., “scènes
à faire.” Most case law regarding this concept drops the accent marks, and this Court will do
the same.

9

necessarily follow from a common theme or setting.” Id. “The scenes a faire doctrine
also excludes from protection those elements of a [work] that have been dictated by
external factors.” Id.; see also Walker v. Time Life Films, Inc., 784 F.2d 44, 50 (2d Cir.
1986) (“Neither does copyright protection extend to copyright or ‘stock’ themes
commonly linked to a particular genre.”).
Once these nonprotectable aspects of the work have been filtered, a court must
“compare the remaining protected elements to the allegedly copied work to determine if
the two works are substantially similar.” Country Kids, 77 F.3d at 1285. In particular,
“the court must find that the defendant copied protectable elements of the plaintiff’s
[work] and that those protectable elements comprise a substantial part of the plaintiff’s
[work] when it is considered as a whole.” Gates Rubber, 9 F.3d at 833. 6
V. ANALYSIS
A.

Matters Truly in Dispute
Given the foregoing, the elements of a copyright claim under the circumstances

of this case may be summarized as follows:
6

The Tenth Circuit recently described the abstraction-filtration-comparison test as “one
method for analyzing substantial similarity,” implying that other methods exist. Savant Homes,
Inc. v. Collins, 809 F.3d 1133, 1141 (10th Cir. 2016). From this Court’s review of the relevant
case law (in particular, disputes regarding how-to guides, lesson plans, and the like), it appears
universal that courts, at a minimum, filter the nonprotectable from the protectable elements in
the plaintiff’s work, and then compare defendants’ work to what remains. This essentially
merges abstraction and filtration, but the difference between the two may be semantic anyway.
As the Tenth Circuit expressed it in Country Kids, abstraction involves “separat[ing]” ideas from
their expression, whereas filtration involved “filter[ing] out the nonprotectable components of the
product from the original expression.” 77 F.3d at 1285. In this context, “separating” and
“filtering” are synonyms, although aimed at different levels of generality (“separating” ideas from
expression, then “filtering” protectable from nonprotectable expression). Cf. id. at 1285–88
(addressing abstraction and filtration under a single heading: “The Abstraction and Filtration
Analysis”). This may be why some courts speak of “successive filtration” rather than
“abstraction” and “filtration.”

10

1.

Ownership: Civility Experts owns a valid copyright in its Lessons.

2.

Copying: Molly Manners—
a.

directly copied Civility Experts’ Lessons; or

b.

Molly Manners
i.

had access to Civility Experts’ Lessons, and

ii.

Molly Manners’ Lessons bear probative similarities to Civility
Experts’ Lessons.

3.

Substantial Similarity: After separating ideas from their expression, and
filtering protectable from nonprotectable expression in Civility Experts’
Lessons, Molly Manners’ Lessons contain protectable elements of Civility
Experts’ Lessons that comprise a substantial part of Civility Experts’
Lessons when considered as a whole.

For present purposes, Molly Manners does not dispute Element 1 (ownership) or
Element 2(b)(i) (access). (See ECF No. 85 at 9; ECF No. 129 at 4, ¶¶ 1–4.) Molly
Manners says that it is disputing Element 2(b)(ii) (probative similarity), but that is
because Molly Manners, like many others, confuses the probative similarity inquiry with
the ultimate substantial similarity inquiry. What Molly Manners really disputes is
Element 3 (substantial similarity). (See ECF No. 85 at 9 (“the only element at issue is
whether there are probative similarities (a/k/a ‘substantial similarity’) between the legally
protectable elements of Plaintiff’s materials and Molly Manners’ materials”).)
Element 2 is unresolvable at this stage given that Molly Manners’ attempted
admission of Element 2(b)(i) is not enough to satisfy all of Element 2(b), and Molly
Manners does not admit Element 2(a) (direct copying). However, Elements 1, 2, and 3
11

are conjunctive, so failure as to any one of them would defeat Civility Experts’ copyright
claim. Thus, the Court will disregard Elements 1 and 2 for present purposes and move
directly to Element 3. Cf. Gates Rubber, 9 F.3d at 833 (“Although we suggest that it will
often be helpful to make an initial determination of whether the defendant copied
portions of the plaintiff’s [work] before determining whether the copying involved
protectable elements under the copyright law, there may be cases where the issue of
protectability can more efficiently be addressed first.”).
B.

The Scope of Civility Experts’ Comparisons
Civility Experts points out numerous alleged similarities between its Lessons and

Molly Manners’ Lessons. (See ECF No. 115 at 6–11; see also ECF No. 86-36 at 8–23.)
These alleged similarities range from large-scale structure down to word choice in
individual sentences. The Court will address Civility Experts’ alleged similarities in
essentially that large-to-small order, to determine which similarities relate to protectable
elements of Civility Experts’ Lessons.
Before reaching those alleged similarities, however, the Court must address the
scope of Civility Experts’ copyright allegations. Specifically, the Court must address
Civility Experts’ practice, evident at various times below, of drawing out alleged
similarities by: (1) comparing a single Civility Experts Lesson to two or more Molly
Manners Lessons, collectively; (2) comparing two or more Civility Experts Lessons,
collectively, to a single Molly Manners Lesson; and (3) comparing two or more Civility
Experts Lessons, collectively, to two or more Molly Manners’ Lessons, collectively.
As to the first practice (comparing the copyrighted work to multiple other works,
collectively), the Tenth Circuit has endorsed the possibility of copyright infringement in
12

this manner. See Jacobsen v. Deseret Book Co., 287 F.3d 936, 945 (10th Cir. 2002)
(comparing plaintiff’s one-volume work to defendants’ five-volume work). This makes
intuitive sense. An obvious ripoff of a copyrightable work could not avoid infringement
simply by being broken up into a trilogy. Thus, Civility Experts’ practice of comparing
one of its Lessons to a combination of Molly Manners Lessons faces no fundamental
legal obstacle.
As to the second practice (comparing multiple copyrighted works, collectively, to
a single work), Civility Experts offers no supporting authority, but some extra-circuit
authority nonetheless exists. See Castle Rock Entm’t, Inc. v. Carol Pub. Grp., Inc., 150
F.3d 132, 138 (2d Cir. 1998) (citing cases). The allegedly infringing work in Castle
Rock was a Seinfeld trivia book that had distilled fragments from 84 of the 86
individually copyrighted Seinfeld episodes that had aired before the book’s publication.
Id. at 135–36. The Second Circuit acknowledged that the Copyright Act repeatedly
speaks of infringing “the copyrighted work” (singular), see 17 U.S.C. § 106, but adhered
to several other decisions treating multiple copyrighted works in the aggregate when
comparing them to the defendant’s alleged infringing work. Castle Rock, 150 F.3d at
138. In particular, the court saw Seinfeld as “a single work” because it was “a discrete,
continuous television series.” Id.
The Castle Rock theory is somewhat concerning. At a minimum, Castle Rock
leaves unresolved the question of whether a defendant may invoke aggregation as well.
Thus, if a defendant copied what might be considered a substantial portion of a single
Seinfeld episode, could that defendant demand that his copying be compared to all

13

Seinfeld episodes in the aggregate? If not, then the aggregation principle creates—with
no obvious justification—a “heads I win, tails you lose” situation in favor of the copyright
owner. See also 4-13 Nimmer on Copyright § 13.03[A][3] (discussing other potential
concerns with the Castle Rock approach).
In all events, the Court need not decide whether the Castle Rock theory applies
here because Civility Experts’ Lessons cannot be viewed as a discrete, continuous
series in the same sense as a television series. Accordingly, to the extent Civility
Experts is attempting to establish an actionable comparison by comparing one Molly
Manners Lesson to multiple Civility Experts Lessons, the Court has disregarded it.
As to the third practice (comparing multiple works, collectively, to multiple works,
collectively), Civility Experts cites no authority—and the Court could find none—
endorsing this sort of “corpus vs. corpus” theory of copyright infringement. Absent such
authority, or at least an intuitively workable principle (resolving, e.g., what counts as the
“corpus”), the Court will not explore whether multiple Molly Manners Lessons, taken
together, infringe multiple Civility Experts Lessons, taken together.
C.

Abstraction & Filtration
The Court now turns to the abstraction and filtration process as applied to Civility

Experts’ alleged similarities between its Lessons and Molly Manners’ Lessons.7 The
Court has read both Civility Experts’ and Molly Manners’ respective Lessons cover-tocover (specifically, ECF Nos. 86-6 thru 86-35), and has evaluated every claim of
similarity found in Civility Experts’ Response (ECF No. 115 at 6–11) and in its initial
7

The ensuing analysis does not explicitly differentiate between “abstraction” and
“filtration.” As already explained, the difference is semantic. (See n.6, supra.)

14

disclosures (ECF No. 86-36 at 8–23).
1.

Business Model

Civility Experts argues that Molly Manners “nonliterally copied Civility Experts’
model” because:
a.

Civility Experts has long branded its materials with “MannersMatter”
immediately followed by a geographic designation (e.g.,
“MannersMatterUSA”) and Molly Manners supposedly takes a
similar approach with franchisee URLs (“MollyManners[City
Name].com”);

b.

Molly Manners “[s]ells for almost identical price $3500.00”; 8 and

c.

Civility Experts has “[t]hree core kits” aimed at ages 3–7, 8–12, and
8–12 (again), respectively, and Molly Manners has three kits aimed
at ages 3–6, 7–11, and 12–17, respectively.

(ECF No. 115 at 9.)
Civility Experts may not claim copyright protection over its “model” because it is,
at most, an “idea, procedure, process, system, method of operation, [or] concept,” to
which copyright protection does not extend. 17 U.S.C. § 102(b). Accordingly, these
alleged similarities are not a valid basis for comparison.
2.

Selection and Arrangement of Topics

As noted previously, “an original selection or arrangement” of facts or ideas is
potentially protectable expression. Feist, 499 U.S. at 348. Civility Experts asserts that

8

Civility Experts does not specify what in particular Molly Manners offers for $3500.

15

Molly Manners’ Nice is Right copied the selection and arrangement of topics in Civility
Experts’ Macaroni and Please, and that Molly Manners’ Kool to Be Kind and The Young
Sophisticate mimic the selection and arrangement of topics in Civility Experts’ Proud to
Be Polite and Confidence is Cool. (See ECF No. 115 at 9–11.) The Court will address
these accusations in turn.
a.

Macaroni and Please vs. Nice is Right

Civility Experts’ Macaroni and Please is a collection of thirty manners lessons
aimed at children ages 3–7, with each lesson designed to require no more than ten
minutes of instructional time, followed (at the instructor’s discretion) by up to fifty
minutes of worksheets and other activities. (ECF No. 86-6 at 2–4.) The topics covered
in the thirty lessons are, in the order presented:
1.

the concept of manners;

2.

the connection between good manners and showing respect for others
and for yourself;

3.

politely introducing yourself to someone new, including using proper eye
contact;

4.

proper handshake technique;

5.

the importance of smiling;

6.

the concept and importance of first impressions;

7.

review of all of the foregoing;

8.

self-respect, including concepts such as self-esteem and grooming;

9.

wearing proper clothing for the occasion;

10.

posture;

16

11.

table manners, with emphasis on being presentable, moderate when
eating, cheerful, helpful, and not too noisy;

12.

setting the table properly;

13.

appropriate use of each utensil;

14.

helping adults at mealtime;

15.

table manners, with emphasis on not bringing distractions to the table
(e.g., toys), chewing quietly and with a closed mouth, not putting elbows
on the table, and similar matters;

16.

review of the previous table manners lessons;

17.

the importance of following rules;

18.

showing kindness;

19.

behavioral expectations in varying social situations, such as the contrast
between behaving at school and at a birthday party;

20.

showing politeness through nonverbal behavior, such as listening
sincerely and waiting your turn;

21.

telephone etiquette;

22.

avoiding gossip, particularly whispering gossip;

23.

appropriate behavior at school;

24.

review of the previous twenty-three lessons, especially to ensure that the
children understand new words they have learned;

25.

things not to say out loud, even if true, and learning to respect differences;

26.

responding to invitations;

27.

party etiquette (and, nominally, sleepover etiquette, although with no
instructions specific to sleepovers—compare lesson 30);

28.

being a proper host;

29.

showing gratitude and appreciation, verbally and in writing (e.g., thank you
cards); and
17

30.

sleepover etiquette.

(Id. at 5–95.)
Molly Manners’ allegedly infringing lesson guide, Nice is Right, presents a series
of eight lessons aimed at ages 3–7. (ECF No. 86-11 at 1–2.) Molly Manners
recommends presenting these eight lessons in 30–45 minute class sessions over 6–8
weeks. (ECF No. 86-27 at 12.) The topics covered in the eight lessons are, in the
order presented, as follows:
1.

the concept of manners, with an overview of five attributes to be
emphasized throughout the course (friendliness, helpfulness, kindness,
respectfulness, and patience);

2.

friendliness, including—
a.
b.

“friendly introductions,” including making eye contact and shaking
hands (although with no instruction on handshake technique); and

c.
3.

behaviors friends exhibit toward one another;

the importance of smiling;

helpfulness, particularly helping around the house, including—
a.
b.

cleaning up after dinner; and

c.
4.

setting the table properly;

picking up toys;

kindness, including—
a.

b.
5.

kind behaviors (e.g., sharing, complementing others, being
inclusive on the playground, etc.); and
unkind words and phrases to avoid;

respectfulness, including—
a.

using polite words (please, thank you, excuse me, etc.);
18

b.
c.

self-respect (e.g., through healthy eating, proper grooming, etc.);

d.

respect for books and toys; and

e.
6.

respecting personal space;

respect for the environment;

patience, including—
a.

waiting in line;

b.

waiting for your turn to come;

c.

delayed gratification; and

d.

being a good sport;

7.

table manners, play date manners, and birthday party manners; and

8.

self-esteem and good sportsmanship.

(ECF No. 86-11 at 3 thru 86-14 at 8.)
In comparing the foregoing outlines, it is obvious that Molly Manners’ Nice is
Right overlaps with Civility Experts’ Macaroni and Please on numerous subjects, e.g.,
the concept of manners; proper introductions; the importance of smiling; helping at
mealtime; setting the table properly; table manners; party manners; showing kindness;
and self-respect/self-esteem. As a matter of law, however, these cannot be an original
selection of subjects. Feist, 499 U.S. at 348. Any workshop on manners and etiquette,
especially one aimed at children, will likely cover these sorts of topics. Thus, they are
scenes a faire.9 See, e.g., DeBitetto v. Alpha Books, 7 F. Supp. 2d 330, 334 (S.D.N.Y.

9

Notably, Civility Experts entirely ignores Molly Manners’ arguments regarding scenes a
faire, as well as the arguments regarding merger, discussed in Part V.D, below. (See generally
ECF No. 115.)

19

1998) (applying scenes a faire doctrine in the context of competing dog-care books
where both contained “undeniably similar” discussions of certain topics but “the
inclusion and presentation of such facts naturally result[ed] from the choice of subject
matter”).
To the extent Civility Experts claims an original arrangement of subjects, see
Feist, 499 U.S. at 348, the Court need not evaluate the argument because Nice is Right
is not arranged in the same order as Macaroni and Please. Civility Experts implicitly
concedes as much in its table comparing the two works, where it is forced to list Nice is
Right’s various lessons out of order to make them line up with Macaroni and Please’s
lesson order. (See ECF No. 115 at 10.) This Court has explicitly condemned such
rearrangement as a means of attempting to prove substantial similarity. See Feder v.
Videotrip Corp., 697 F. Supp. 1165, 1171 (D. Colo. 1988).
Moreover, Nice is Right employs a perceptibly different approach to its
arrangement as compared to Macaroni and Please. Nice is Right largely presents its
lessons in terms of broad attributes the instructor wants the children to develop
(kindness, patience, etc.), and then teaches specif ic manners or items of etiquette
under the umbrella of each attribute. Macaroni and Please, on the other hand, takes a
discrete situational approach (greetings and first impressions, table manners, party
manners, etc.) and usually presents only one or two unique concepts or skills per
lesson. Cf. DeBitetto, 7 F. Supp. 2d at 334 (“Notwithstanding the similar factual
content, these sections are organized differently and convey information using a
different tone and style.”).

20

The only notable similarity in arrangement between Macaroni and Please and
Nice is Right is in certain aspects of their earliest lessons: both begin with discussing
the concept of manners, then quickly turn to the idea of proper introductions, and both
offer sticker charts on which the students can track their good behavior.10 Notably, this
is not a lock-step similarity—each lesson guide intersperses these concepts/activities
among others. Nor can the Court deem this sequence to be original expression. It is
common for workshops or seminars of any type to begin with a conceptual overview of
the topic. As for a manners workshops in particular, placing a lesson regarding proper
introductions toward the beginning of the workshop is a natural place for such a lesson.
It is likewise natural to hand out a sticker chart at the beginning of a series of children’s
lessons. It does not display the creativity necessary for copyright protection.11 Cf.
10

Civility Experts would insert into this list its “Manners Detective” activity as compared
to Molly Manners “Treasure Hunt for Good Manners” activity, both of which appear in each
company’s first lesson. (See ECF No. 115 at 10.) These two activities have essentially nothing
in common. “Manners Detective” is a worksheet listing ten behaviors and asking the student to
place an X next to the behaviors he or she believes are polite. (ECF No. 86-6 at 7.) The
“Treasure Hunt for Good Manners” involves searching the classroom for hidden slips of paper
showing cartoon pirates and mermaids engaged in polite or helpful behaviors (e.g., cleaning up
toys, setting the table), and then discussing those behaviors as a group. (ECF No. 86-11 at 5.)
11

It is not clear whether Civility Experts claims copyright protection for its sticker chart or
whether it highlights Molly Manners’ sticker chart only to show ostensible similarity of selection
and arrangement. (See ECF No. 115 at 10.) To the extent Civility Experts believes its sticker
chart is protectable expression, the Court rejects that claim. Sticker charts to encourage good
behavior in children, are, at best, an unprotectable idea or procedure, 17 U.S.C. § 102(b), and
in any event have been for many years in the public domain—or, perhaps more accurately, the
private domain of innumerable homes as desperate parents have tried to encourage good
behavior. Moreover, there is little overlap between the actual behaviors encouraged by Civility
Experts’ sticker chart as compared to Molly Manners’ sticker chart. (Compare ECF No. 86-6 at
8 with ECF No. 86-11 at 12.) To be sure, both charts are laid out as grids, with the particular
behavior to practice named at the top of each column, but there are really only two ways to
display a standard sticker chart, i.e., with column headings or row headings. The fact that Molly
Manners also chose column headings is not an actionable similarity. Cf. Palmer v. Braun, 155
F. Supp. 2d 1327, 1332 (M.D. Fla. 2001) (in the context of competing self-realization seminar
materials, finding that both had similar personality profile forms, but finding nothing protectable

21

Glass, 2010 WL 4274581, at *5 (in evaluating competing books on handling the
personality differences between men an women, finding that the chapters on effective
listening mimicked each other in the arrangement of concepts, but also that “use of
these elements and the arrangement of these elements are, as a practical matter,
indispensible or standard in the treatment of this idea . . . and therefore not protected
by copyright”).
In short, the alleged similarities in topical selection and arrangement between
Macaroni and Please and Nice is Right are not a valid basis for comparison.
b.

Proud to Be Polite/Confidence is Cool vs. Kool to Be Kind/The
Young Sophisticate

Civility Experts synthesizes the topics covered in its two lesson guides for older
children, Confidence is Cool and Proud to Be Polite, and compares that synthesized
version first to Molly Manners’ Kool to Be Kind, and then to Molly Manners’ The Young
Sophisticate. (ECF No. 115 at 10–11.) This necessarily dooms any claim to an original
arrangement of topics since Civility Experts has rearranged its own material to make
the current comparison. The analysis below therefore focuses solely on selection of
topics.
Confidence is Cool is a set of lesson plans for a five-day “confidence camp,”
aimed at ages 8–12. (ECF No. 86-7 at 1–4.) 12 The topics covered for each of the five
days are, in the order presented:

because “anyone pursuing the idea of a personality profile would likely use a similar form to
elicit the same basic information”), aff’d, 287 F.3d 1325 (11th Cir. 2002).
12

Civility Experts claims that unspecified portions of Confidence is Cool “have been
used for ages up to 18+.” (ECF No. 115 at 11.)

22

1.

Day 1—
a.
b.

proper greetings and introductions, including proper handshakes,

c.

self-respect,

d.

a six-step process for gaining confidence,

e.

remaining calm in difficult situations, and

f.
2.

the concept of confidence,

overcoming shyness;

Day 2—
a.
b.

posture, gait, and other nonverbal communication,

c.

conflict resolution,

d.

personal grooming,

e.

appropriate clothing in various situations, and

f.
3.

first impressions,

confident and appropriate verbal communication;

Day 3—
a.
b.

the importance of manners and etiquette to make society run
smoothly,

c.

telephone etiquette,

d.

party etiquette,

e.

gratitude and appreciation, and

f.
4.

the concept of situational etiquette,

an optional section on dating etiquette;

Day 4—
23

a.
b.

setting the table,

c.

proper use of utensils,

d.

helpfulness in the kitchen and respect for the cook,

e.

the art of conversation, and

f.
5.

the concept of table manners,

buffet etiquette; and

Day 5—
a.

goal-setting, and

b.

review of concepts learned in the previous days.

(ECF No. 86-7 at 7–81.)
Civility Experts markets Proud to Be Polite “as a prerequisite (or supplement) to
the Confidence is Cool program,” and it is likewise aimed at ages 8–12. (ECF No. 86-8
at 1, 2.) Proud to Be Polite presents nineteen lessons (id. at 3) and is more-or-less an
abbreviated version of Macaroni and Please, adapted for older children. Each lesson is
designed to require 10–15 minutes of instruction and can then be extended for up to an
hour with optional activities. (Id. at 5.) The topics covered for each of the nineteen
lessons are, in the order presented:
1.

the concept of manners, particularly as a way of showing respect;

2.

the concept of respect, and its connection to manners;

3.

self-respect;

4.

the importance of first impressions;

5.

the choreography of meeting new people (when to stand, when to
approach, etc.);
24

6.

proper handshakes;

7.

eye contact;

8.

smiling and introduction protocol;

9.

remembering names;

10.

communicating with confidence;

11.

the art of conversation;

12.

nonverbal communication;

13.

listening skills;

14.

giving compliments;

15.

avoiding rude communication;

16.

telephone etiquette;

17.

online etiquette;

18.

review of all previous topics; and

19.

goal-setting.

(Id. at 12–60.)
Molly Manners’ Kool to Be Kind is aimed at ages 7–11. (ECF No. 86-15 at 1.) It
is broken into fourteen lessons, each apparently designed to cover one class period of
unspecified length. (Id. at 2.) The topics covered for each of the fourteen lessons are,
in the order presented:
1.

Lesson 1—
a.

learning and remembering names,

b.

saying please and thank you,

c.

the “five steps to friendly introductions” (stand up, smile, make eye
25

contact, shake hands, introduce yourself in a friendly way),
d.
e.
2.

proper handshakes, and
remembering names (again);

Lesson 2—
a.
b.

3.

polite words and phrases, and
rude words and phrases;

Lesson 3—
a.

b.
4.

ways to help at home (including helping to set the table, although
with no instruction on this task), and
avoiding behaviors that display a bad attitude;

Lesson 4—
a.

5.

table setting;

Lesson 5—
a.
b.

6.

table manners to encourage, and
behaviors to avoid at the table;

Lesson 6—
a.
b.

7.

restaurant etiquette, and
proper use of utensils;

Lesson 7—
a.

8.

good personal habits and their relation to making good first
impressions;

Lesson 8—
a.

review of the five steps to friendly introductions,

b.

conversation skills,
26

c.
d.
9.

conversation starters, and
giving and receiving compliments;

Lesson 9—
a.
b.

10.

good posture, and
becoming aware of body language;

Lesson 10—
a.
b.

sleepover etiquette,

c.

party etiquette,

d.

responding appropriately to receiving gifts, and

e.
11.

play date etiquette,

writing thank you notes;

Lesson 11—
a.

12.

Lesson 12—
a.

13.

good sportsmanship;

promoting self-confidence and positive self-image;

Lesson 13—
a.
b.

when to remove your hat, and

c.
14.

common courtesies (e.g., opening doors for others),

movie theater etiquette; and

Lesson 14—
a.

review of all previous concepts.

(ECF No. 86-15 at 3 thru 86-23 at 5.)
Molly Manners’ The Young Sophisticate is aimed at ages 12–17. (ECF No.
27

86-24 at 1.) It is broken into nine lessons that can be taug ht over the course of five to
seven one-hour sessions. (Id. at 2.) The topics covered for each of the nine lessons
are, in the order presented:
1.

Lesson 1—
a.
b.

the effect of body language,

c.

the five steps to friendly introductions (from Kool to Be Kind), and

d.
2.

first impressions,

remembering names;

Lesson 2—
a.
b.

elevator etiquette,

c.

public transportation etiquette, and

d.
3.

opening doors for others,

when to remove your hat;

Lesson 3—
a.
b.

conversation starters, and

c.
4.

the art of conversation,

giving and receiving compliments;

Lesson 4—
a.
b.

online etiquette, and

c.
5.

cell phone etiquette,

avoiding conversation about most money matters;

Lesson 5—
a.

thank you notes;
28

6.

Lesson 6—
a.

7.

good personal habits;

Lesson 7—
a.

b.

calculating a tip, and

c.
8.

table setting (in the context of understanding the purpose for the
various dishes and utensils usually set out at a restaurant),

table manners;

Lesson 8—
a.

9.

body language; and

Lesson 9—
a.

job interviews.

(ECF No. 86-24 at 3 thru 86-26 at 3.)
Obviously, Molly Manners’ Kool to Be Kind and The Young Sophisticate cover
many topics also covered in Civility Experts’ Proud to Be Polite and Confidence is Cool.
But again, all of these topics are scenes a faire in manners and etiquette training.
Thus, the fact that Molly Manners’ lesson guides contain the same selection of topics,
among others, is not an appropriate element in the substantial similarity test.
3.

Miscellaneous Other Features

Civility Experts’ various lists of comparisons include a smattering of allegedly
unique items from its own Lessons that are supposedly also found in Molly Manners’
Lessons. The Court addresses those comparisons here.
a.

Hot Potato

Civility Experts’ Macaroni and Please, lesson 11, introduces the idea of table
29

manners. (See ECF No. 86-6 at 36–38.) For amusement, the lesson gives the children
a tongue twister about passing the potatoes at dinner time. (Id. at 38.) The lesson also
suggests playing hot potato with the children—apparently not to reinforce any particular
concept, but because the tongue twister involves potatoes and because children like to
play games. (Id. at 37.)
Molly Manners’ Kool to Be Kind, lesson 1, teaches “the five steps to friendly
introductions,” among other things. (ECF No. 86-15 at 5.) As a means of reinforcing
the five steps, Molly Manners suggests a variant on hot potato. Instead of eliminating
the person holding the potato when the music stops, that person must instead recite the
five steps. (Id. at 7.)
Civility Experts asserts that “Molly Manners copied Civility Experts’ materials of
playing ‘hot potato’ in teaching children introductions.” (ECF No. 115 at 9.) This claim
is without merit. Hot potato has existed for generations, and suggesting that a teacher
should play it with students is far from original. Moreover, the use of hot potato within
Kool to Be Kind (reinforcing the five steps to friendly introductions) is significantly
different than its use in Macaroni and Please (amusement after a lesson about table
manners). It provides no valid basis for comparison.
b.

Golden Fork Award

Civility Experts’ Macaroni and Please, lesson 13, covers proper use of utensils.
(ECF No. 86-6 at 43–44.) It suggests that the instructor could “[h]ave a contest where
the prize is ‘The Golden Fork’ award. Ask parents to help by completing a chart or
signing a note if a child uses utensils for 10 meals in a row.” (Id. at 44.)

30

Molly Manners’ Kool to Be Kind, lesson 14, suggests that the teacher put on a
special meal where students can practice their dining etiquette. (ECF No. 86-23 at
4–5.) At the close of the meal, the teacher is instructed to present the students with
“Golden Fork Award” certificates showing that they have “demonstrat[ed] excellent table
manners.” (Id. at 5.)
Civility Experts argues that Molly Manners’ version of the Golden Fork Award is
“[v]erbatim” copying of Civility Experts’ version, with the “[s]ame name, concept,
approach, and application.” (ECF No. 86-36 at 10.) Molly Manners counters with a
Bing Images search for “golden fork award,” which displays numerous hits. (ECF No.
86-39.) Molly Manners therefore argues that the concept of a golden fork award “fall[s]
squarely within the public domain.” (ECF No. 85 at 18.)
The issue is not as straightforward as Molly Manners portrays it. The relevant
images Molly Manners found on the Internet relate exclusively to best restaurant
awards. Thus, the concept of an award called the “golden fork award” is certainly within
the public domain, as is applying that concept to a best restaurant competition.
However, adapting the golden fork concept to encourage good table manners (as
Civility Experts has) does not appear to be in the public dom ain.
This raises an interesting example of the sometimes-hazy line between protected
original expression and nonprotectable ideas or concepts. Is Civility Experts’
adaptation of the golden fork award just another nonprotectable concept—the idea of
awarding good table manners with an award known as the Golden Fork Award? Or is it
a mark of original expression—the nonprotectable idea of awarding good table
manners, but expressed through an allegedly original adaptation of the golden fork
31

concept?13
Ultimately, declaring Civility Experts’ Golden Fork Award to be protectable
expression would create rights similar to that of a trademark or service mark—anyone
else could award students for using good table manners (because the bare idea cannot
be copyrighted) but only Civility Experts could name that award the “Golden Fork
Award.” That is not the purpose of copyright law. See, e.g., Warner Bros. v. Dae Rim
Trading, Inc., 677 F. Supp. 740, 760 (S.D.N.Y. 1988) (distinguishing trademark and
copyright). The Court therefore finds that the Golden Fork Award is not protectable
expression.
c.

Etiquette Everywhere vs. Everyday Etiquette

Day 3 of the confidence camp outlined in Civility Experts’ Confidence is Cool
begins with a discussion of “etiquette everywhere.” (ECF No. 86-7 at 40–41.)
“Etiquette everywhere” is shorthand for the idea that social expectations change in
varying situations. (Id. at 41–42, 45.) It also encourages students to practice certain
common courtesies in public (opening doors for others, offering a seat to an elderly
individual, etc.), and to avoid common rude or disrespectful behaviors. (Id. at 46–49.)
Molly Manners’s Kool to Be Kind, lesson 13, focuses on “everyday etiquette,”
meaning “common courtesies that children may encounter on a daily basis.” (ECF No.
86-22 at 5.) These include, among various other things, opening doors for others and
offering a seat to an elderly individual.

13

One could argue, although Molly Manners has not, that Civility Experts only uses the
Golden Fork Award to encourage proper use of utensils, and not, like Molly Manners, to reward
good table manners generally. Assuming Civility Experts can have any copyright protection in
the Golden Fork Award, the Court does not see this as a material distinction.

32

Civility Experts cannot copyright the concept of situational etiquette or showing
common courtesies. Thus, it is immaterial that Confidence is Cool and Kool to Be Kind
both address this topic. It is also immaterial that both lessons focus on common
courtesies (a scene a faire in light of the overall subject matter) or that they overlap on
specific recommended courtesies (scenes a faire in any discussion of common social
courtesies). Moreover, Civility Experts’ treatment of “etiquette everywhere” is
meaningfully different than Molly Manners’ treatment of “everyday etiquette.” Civility
Experts’ materials cover a wide range of public and private social situations and personto-person interactions, with little or no specified discussion as to any particular situation
or interaction. The advice to give up a seat to the elderly, for example, appears as part
of a true-or-false worksheet. (See ECF No. 86-7 at 49.) In contrast, Molly Manners’
materials focus almost exclusively on common courtesies in public and contain
substantial recommended discussion. Cf. DeBitetto, 7 F. Supp. 2d at 334
(“Notwithstanding the similar factual content, these sections are organized differently
and convey information using a different tone and style.”).
For all these reasons, “etiquette everywhere” vs. “everyday etiquette” is not a
valid basis for comparison in the substantial similarity analysis.
d.

End-of-Day Review vs. Manners Minutes

Civility Experts’ Confidence is Cool suggests ending certain camp days with an
opportunity to discuss and reflect on what has been taught that day. (See ECF No. 867 at 19, 58, 76.) Civility Experts says that Molly Manners copied this idea and renamed
it “Manners Minutes.” (ECF No. 115 at 11.) But Civility Experts cannot plausibly claim

33

that the idea of end-of-day review is protectable expression. Moreover, “Manners
Minutes” is actually a suggestion for the instructor to e-mail students’ parents regarding
“what manners and activities were discussed that week,” so that parents can reinforce
what their children are learning. (ECF No. 86-27 at 15.) There is no basis to compare it
to Confidence is Cool’s end-of-day review.
e.

The Art of Conversation

Civility Experts’ Confidence is Cool and Proud to Be Polite both contain sections
titled “The Art of Conversation.” (ECF No. 86-7 at 66; ECF No. 86-8 at 40.) Molly
Manners’ The Young Sophisticate contains an identically titled section. (ECF No. 86-24
at 7.) This is conceivably relevant to Civility Experts’ claim for breach of the Settlement
Agreement’s provision forbidding Molly Manners from using Civility Experts’ “verbatim
lesson names.” (ECF No. 86-10 ¶ 1.) That matter is not currently before the Court. As
to protectable expression under the copyright laws, Civility Experts can claim none.
“The art of conversation” is a stock phrase, and therefore falls under the scenes a faire
doctrine.
f.

Word Searches

Civility Experts accuses Molly Manners of infringement because their respective
Lessons contain word search worksheets. (See ECF No. 86-36 at 10.) Word searches
are scenes a faire in children’s instructional materials. Civility Experts can claim no
protectable expression on this point.
g.

Polite Posse vs. Polite Pals

Macaroni and Please, lesson 1, encourages the instructor to assign a few

34

children each day to be the “Polite Posse.” (ECF No. 86-6 at 6.) These children help
enforce a particular rule of the day. (Id.) Civility Experts compares this to Molly
Manners’ Nice is Right, lesson 1, which introduces the “Polite Pals.” (ECF No. 86-11 at
6–7.) The Polite Pals are five fictional cartoon characters who represent the attributes
emphasized in Nice is Right (“Friendly Freddy,” “Helpful Heidi,” etc.). They are simply
teaching tools (and the subject of many coloring pages). They have no enforcement
role, nor is any class participant asked to pretend to be a Polite Pal. T here is no
appropriate comparison between the Polite Posse and the Polite Pals.
h.

Table Monsters vs. Merry Monsters

Civility Experts’ Macaroni and Please introduces children to “the Table
Monsters,” who demonstrate poor manners at the dinner table (e.g.,
“Slobbergobblerex”). (ECF No. 86-6 at 36–38.) There are no pictures of the Table
Monsters; they are described only.
Molly Manners’ Kool to Be Kind, in a lesson regarding general respectful
behaviors (not table manners), introduces children to “the Merry Monsters,” who are
cartoon figures depicted on a worksheet with empty speech bubbles above or to the
side of them. (ECF No. 86-16 at 5.) Says Molly Manners, “These monsters aren’t
scary, they’re merry! Using polite words makes them happy! Write in polite words and
phrases in the merry monsters’ speech bubbles.” (Id.)
Civility Experts says that the “idea” for the Merry Monsters was “taken” from the
Table Monsters. (ECF No. 86-36 at 10, 12.) Even if this were ultimately true, it would
provide no valid basis for comparison of protectable expression. Civility Experts cannot

35

copyright an idea. In addition, monsters are scenes a faire in children’s instructional
materials, and particularly in lessons regarding manners. (See ECF No. 86-37 (Bing
Images search).) In any event, the Merry Monsters and the Table Monsters have
essentially no resemblance beyond the fact that both are labeled as monsters.
i.

Manners Superheroes

Civility Experts’ Macaroni and Please, lesson 23, discusses manners at school.
(ECF No. 86-6 at 72–74.) One suggested activity is to
[a]sk children to be “Manners Superheroes.” Ask them to
create a character for themselves, complete with costumes
and special powers (remind them they are fighting bad
manners at school or bringing good manners to school)[.]
Give them a day or two to plan something and let them each
do show and tell and describe their superhero to the class.
(Id. at 73.)
Molly Manners’ Nice is Right, lesson 3, discusses many forms of helpfulness.
(ECF No. 86-12 at 3–10.) One portion of this lesson is entitled “Manners Superheroes!”
and instructs as follows:
Get a class set of “Superhero” props such as inexpensive
capes and Lone Ranger-style eye masks at a party store or
Dollar Store. Have students dress up as “Manners
Superheroes”! Say to the class, “What does a superhero
do? Yes, a superhero helps other people. Can you name
your favorite super hero? Well, today we are going to be
Manners Superheroes!” Put students in groups of two. Give
each pair a scenario and have them discuss and act out for
the class what they would do. Give students a few minutes
to talk in their groups and then have them present or
role-play their solutions to the class.
(Id. at 7.) The lesson then poses various “What should you do?” scenarios (e.g., “You
are at home when your mother comes in the door from the grocery store with lots of
36

bags still in the car. What should you do?”).
Civility Experts says that Manners Superheroes is “signature and unique” to
itself. (ECF No. 86-36 at 17.) Like monsters, however, superheroes are scenes a faire
in children’s instructional literature, and particularly when trying to encourage good
manners. (See ECF No. 86-38 (Bing Images search).) Perhaps Civility Experts’
particular implementation of the superhero trope is unique. But even assuming as
much, and further assuming that it is protectable expression (which is fairly debatable),
Molly Manners’ has copied only two constituent parts: the name, and the idea of having
the children dress up as a superheroes. Neither is protectable ex pression.
j.

Sloppy Sue vs. Messy Mandy/Manny

Civility Experts’ Macaroni and Please, lesson 6, discusses first impressions and
the importance of a neat appearance. (ECF No. 86-6 at 21–22.) At one point, it
suggests that the instructor “could sneak out just bef ore this lesson and put on a
‘Sloppy Sue’ costume ([o]ld clothes, messy hair, dirty face)[.] Then the instructor can
come into the room and watch the children’s reaction as a lead into the lesson.” ( Id. at
22.)
Molly Manners’ Kool to Be Kind, lesson 7, also discusses first impressions and
the importance of a neat appearance. (ECF No. 86-19 at 1–2.) It asks the instructor to
distribute a worksheet on which the students can draw “Neat Nelly,” “Neat Ned,” “Messy
Mandy,” and “Messy Manny.” (Id. at 2–3.) The point of the exercise is to draw the
messy characters with unkempt appearance and the neat characters with a more
polished appearance. (Id. at 2.)

37

Civility Experts claims that Messy Mandy/Manny is a rip off of Sloppy Sue. (ECF
No. 86-36 at 14.) The Court, however, finds no valid basis for comparison. Sloppy Sue
and Messy Mandy/Manny take very different approaches to the idea of demonstrating a
poor appearance. Moreover, Civility Experts cannot claim any protectable expression in
alliterative two-word names, which are at least scenes a faire in children’s instructional
materials, if not entirely unoriginal.
D.

Remaining Alleged Similarities & Substantial Similarity Analysis
The Court finally turns to Civility Experts’ claims of literal or near-literal copying in

Molly Manners’ materials. As explained below, the Court finds that some of the alleged
similarities indeed raise a proper basis for comparison under the substantial similarity
test. Rather than designating the appropriately comparable material in this section and
then analyzing substantial similarity in a separate section, the Court will analyze
abstraction and filtration for each of Civility Experts Lesson in separate subsections
below, and then analyze substantial similarity at the end of each subsection. Before
undertaking that analysis, however, the Court notes two important considerations:
First, the substantial similarity inquiry asks “whether the accused work is so
similar to the plaintiff’s work that an ordinary reasonable person would conclude that the
defendant unlawfully appropriated the plaintiff’s protectible expression by taking
material of substance and value.” Jacobsen, 287 F.3d at 943 (internal quotation marks
omitted). “This is primarily a qualitative rather than a purely quantitative analysis, and
must be performed on a case-by-case basis.” Id. (internal quotation marks omitted).
Second, although quality matters more than quantity, the two concepts are

38

linked. A small quantity of copying, even verbatim, is often not actionable without a
strong showing of quality—substance and value—within the copied lines. Cf. Heim v.
Universal Pictures Co., 154 F.2d 480, 487 n.8 (2d Cir. 1946) (suggesting that copying a
single line from Jabberwocky or Euclid Alone Has Looked on Beauty Bare could be
actionable). Where such a showing cannot be made, the copying is deemed de
minimis, i.e., not substantially similar. See Feder, 697 F. Supp. at 1176.
1.

Macaroni and Please

Civility Experts claims that the following portions of Nice is Right and Kool to Be
Kind were lifted from Macaroni and Please:
Macaroni and Please (Civility Experts)

Nice is Right (Molly Manners)

Lesson 3, regarding meeting new people,
advises as follows: “Instructor starts by
asking, ‘What do you do when you meet
someone new? Do you.... (ask silly
questions such as, “Make a funny face
and run away?”, “Throw a sandwich at
them and laugh?”[,] [“S]ay they’re stupid
and then ignore them?”, “[Q]uack like a
duck?”[)] Well then what should you do?’”
(ECF No. 86-6 at 12.)

Lesson 2, regarding meeting new people,
advises as follows: “Say to students,
‘[W]hat are you supposed to do when
you meet someone new? Should you
stick out your tongue and run away? Of
course not! How would that make that
new person feel?’” (ECF No. 86-11 at
13.)

Civility Experts cannot copyright the idea of teaching proper greetings through
counterexamples. However, the means of teaching this subject by way of
counterexamples are not so limited or standardized that the merger or scenes a faire
doctrines would leave Macaroni and Please’s language unprotectable. Comparing
these two passages in the substantial similarity analysis is appropriate.
***

39

Macaroni and Please (Civility Experts)

Nice is Right (Molly Manners)

Lesson 12, regarding table setting, offers
the following sentence to help children
remember where to place utensils: “Mr.
Fork LEFT (the fork is on the left of the
plate) his knife and spoon RIGHT (the
knife and spoon go on the right side of
the plate) beside the plate.” (ECF No.
86-6 at 39.)

Lesson 3, regarding table setting, uses a
paragraph-long memory device,
specifically, a story about “Princess
Spoonella,” “Prince Fork,” the “Knife
Guard,” and other elements. Part of the
story states: “Prince Forks [sic] was LEFT
(left of the plate) all alone ON Napkin
Island.” (ECF No. 86-12 at 4.)

Civility Experts cannot copyright the concept of a table-setting memory device
cast in the form of a story. The only resemblances between the two stories is that they
both play on the word “left.” But that is “dictated by external factors,” Gates Rubber,
9 F.3d at 838, namely, the customary expectation that the fork be placed left of the
dinner plate. This presents no valid basis for comparison.
***
Macaroni and Please (Civility Experts)

Kool to Be Kind (Molly Manners)

Lesson 4, regarding handshakes, asks
the instructor to demonstrate (as
examples of improper technique) “a bone
crushing shake, a spaghetti shake, etc.”
It later offers the following instructional
idea: “It might be fun to use food or other
items to illustrate types of handshakes
and how they feel to others in a more
tactile, memorable way. For example,
blindfold the children and let them put
their hand into a bowl of cold wet cooked
spaghetti, a bag of light, flimsy feathers
and/or on a big, heavy rock or block.”
(ECF No. 86-6 at 15, 16.)

In a portion of lesson 1 regarding proper
handshakes, the following are presented
as examples of bad technique:
“FEATHER HANDSHAKE: What does a
feather feel like to you? Yes, feathers
are light and flimsy. [It is a good idea to
bring in a feather or two to have students
feel and describe here.] . . . . [¶]
HAMMER HANDSHAKE: What does a
hammer do? Yes, a hammer is hard,
cold, and it pounds things. [Maybe bring
in a hammer to have students feel and
describe.] . . . .” (ECF No. 86-15 at 6.)

Advice against too-weak or too-firm handshakes, including comparing such
handshakes to objects such as hammers, noodles, and feathers, are scenes a faire in

40

any instruction regarding handshakes. Civility Experts cannot copyright the idea of
making these points more memorable through tactile reinforcement. The merger
doctrine prevents Civility Experts from claiming copyright over describing feathers as
“light” and “flimsy.” These passages therefore present no valid basis for comparison.
***
Macaroni and Please (Civility Experts)

Kool to Be Kind (Molly Manners)

Lesson 14, regarding helping at
mealtime, contains a take-home
worksheet where students can “[c]heck
off which of the following ways you
helped in the kitchen in the last week.”
Among the eighteen options are (in the
order presented) “set the table,” “helped
cook,” “put the dishes away,” “put the
groceries away,” “washed vegetables,”
and “swept the floor.” (ECF No. 86-6 at
48.)

Lesson 3, regarding helping at home,
presents eleven headings for the
instructor to emphasize, each followed by
a short explanation; some of the
headings are as follows (in order): “put
dishes away,” “sweep the floor,” “help
carry and put groceries away,” “help set
the table,” and “help cook” (with a
specific suggestion of “washing
vegetables”). (ECF No. 86-16 at 7 thru
86-17 at 1 (capitalization normalized).)

Lesson 27, regarding party etiquette,
provide nine tips, including: “Be on time
and don’t stay late if everyone else has
gone home,” “Take a gift,” “Don’t take
along someone who was not invited,” and
“Say thank you and something nice to the
hostess before you leave.” (ECF No. 866 at 85.)

A portion of lesson 10 regarding party
etiquette presents eight headings for the
instructor to emphasize, each followed by
a short explanation; some of the
headings are as follows: “take a gift,”
“don’t take someone who wasn’t invited,”
“be on time and don’t stay late if
everyone has gone home,” and “thank
the adult in charge when you leave, say
good-bye and happy birthday to your
friend.” (ECF No. 86-20 at 6–7
(capitalization normalized).)

41

Macaroni and Please (Civility Experts)

Kool to Be Kind (Molly Manners)

Lesson 30, regarding sleepover etiquette,
offers a list of eight polite behaviors,
including “Go to bed when you are
supposed to,” “Don’t jump on the bed,”
“Don’t snoop around,” and “Don’t sleep in
too long.” (ECF No. 86-6 at 92.)

A portion of lesson 10 regarding
sleepover etiquette presents seven
headings for the instructor to emphasize,
each followed by a short explanation;
some of the headings are as follows: “go
to bed when you are supposed to,” “don’t
jump on the bed,” “no snooping: this is an
important one,” and “don’t sleep in too
long.” (ECF No. 86-20 at 5 (capitalization
normalized).)

These three examples comprise lists of encouraged or discouraged behavior.
None of Civility Experts’ lists displays an original selection or arrangement of topics. Cf.
DeBitetto, 7 F. Supp. 2d at 335 (no copyright protection for “the sort of list likely to be
found in any book” on the relevant topic). In no case did Molly Manners copy the
entirety of any allegedly equivalent list. The merger doctrine prevents Civility Experts
from claiming copyright protection for the literal wording of the various list items. There
are very few ways to say “put dishes away,” “take a gift,” “don’t jump on the bed,” and
so forth, particularly when these phrases are meant to be spoken to young children.
***
Turning now to the substantial similarity analysis for Macaroni and Please, the
question is whether the “What do you do when you meet someone new?” passages
above demonstrate substantial similarity. The answer is no—no reasonable jury could
conclude that this small portion of Macaroni and Please is sufficiently important to the
work as a whole to merit copyright protection. See 4-13 Nimmer on Copyright
§ 13.03[A][2][a] text accompanying n.114.1 (“it is most unusual for infringement to be
found on the basis of similarity of a single line, and generally, the likelihood of copying
42

but a single line of such importance, as to warrant a finding of substantial similarity, is
remote”). Molly Manners therefore has not infringed Macaroni and Please.
2.

Confidence is Cool

Civility Experts claims that the following portions of Nice is Right and Kool to Be
Kind were lifted from Confidence is Cool:
Confidence is Cool (Civility Experts)

Nice is Right (Molly Manners)

A portion of the day 1 outline regarding
self-respect lists the following ways “to be
polite to yourself”:
“1. Take care of my stuff
“2. Wash my hair
“3. Dress nicely
“4. Eat properly
“5. Get some sleep
“6. Exercise[.]”
(ECF No. 86-7 and 12.)

A portion of lesson 5 regarding respect
contains a coloring page titled “The Polite
Pals respect themselves by taking good
care of their bodies,” and features the
Polite Pals depicted in behaviors
reflecting the following labels: “Brush
teeth,” “Wash hands,” “Eat fruits and
veggies,” “Exercise is fun!”, and “A good
night’s sleep.” (ECF No. 86-13 at 3.)

Civility Experts’ list does not display an original selection or arrangement of
topics. Moreover, Molly Manners’ version does not completely duplicate Civility Experts’
list either in content, arrangement, or even grammatical structure (Civility Experts’ list
entirely comprises imperatives, Molly Manners’ list does not). The fact that Molly
Manners’ version could be considered a paraphrase of Civility Experts’ list is immaterial
under the merger doctrine. There are only so many ways to express these concepts in
a manner easily understood by children. See also Francorp, Inc. v. Siebert, 210 F.
Supp. 2d 961, 966 (N.D. Ill. 2001) (in the context of lists within certain copyrighted
materials, denying copyright protection because “[t]he lists are organized differently,
and the explanations are only similar to the extent they express the same concept”).
These passages present no valid basis for comparison.
43

***
Confidence is Cool (Civility Experts)

Kool to Be Kind (Molly Manners)

A portion of the day 2 outline regarding
effective nonverbal communication lists
fifteen behaviors and asks the instructor
to discuss with the students the message
each behavior conveys. Two of the
behaviors are “arms folded “(message:
“rigid, disinterested”; alternative behavior:
“arms at side”) and “fingers tapping”
(message: “inpatient, nervous”;
alternative behavior: “hold hands still”).
(ECF No. 86-7 at 32.)

A portion of lesson 9 regarding positive
body language presents six behaviors
and asks the instructor to discuss with
the students the message each behavior
conveys. Two of the behaviors are
“standing with arms folded” (which
conveys the message, “I am bored and
uninterested,” and should be replaced
with “arms at your side or hands
together”) and “foot or finger tapping”
(“usually a sign of boredom or
impatience”; instead “try to keep your
hands and feet relaxed”). (ECF No. 8620 at 3.)

Folded arms and tapping fingers are scenes a faire in body language training.
The words used to convey these concepts are limited and therefore unprotectable
under the merger doctrine.
***
With no valid comparisons between Molly Manners’ Lessons and Civility Experts’
Confidence is Cool, the Court finds that Molly Manners has not infringed Confidence is
Cool.
3.

Proud to Be Polite

Civility Experts claims that the following portions of Nice is Right, Kool to Be
Kind, and The Young Sophisticate were lifted from Proud to Be Polite:

44

Proud to Be Polite (Civility Experts)

Nice is Right (Molly Manners)

Lesson 1.3 contains a worksheet that
asks students to list of ways “to be polite
to yourself,” with the following suggested
answers:
“1. Only say positive things about myself
“2. Stand up for myself and what I
believe in
“3. Don’t expect myself to do everything
perfectly
“4. Think about all the things I can do
well
“5. Focus on my strengths and work
towards improving my weaknesses
“6. Surround myself with happy positive
people[.]” (ECF No. 86-8 at 19.)

A portion of lesson 8, regarding selfconfidence and good sportsmanship,
presents the following list of “ways that
we can be polite to ourselves”:
“Only say positive things about myself[.]
“Stand up for myself.
“Allow myself to make some mistakes.
Nobody is perfect and we shouldn’t try to
be perfect.
“Think about all the things I can do well.
“Don’t compare myself to others.
“Look for friends and activities that make
you feel good about yourself. Surround
yourself with happy people!
“Accept myself the way that I am. I am
special!” (ECF No. 86-14 at 3.)

Molly Manners includes very similar sections in Kool to Be Kind and The Young
Sophisticate, sometimes with even closer word-choice parallels, such as “Stand up for
myself and what I believe in” rather than just “Stand up for myself.” (See ECF No.
86-21 at 9 thru 86-22 at 1; ECF No. 86-25 at 6.)
The Court finds that Civility Experts’ selection of advice is unprotected under the
scenes a faire doctrine. However, its arrangement shows at least a minimal amount of
creativity, and the words needed to express these bits of advice are not so limited that
the merger doctrine excuses verbatim copying. Comparing these two passages in the
substantial similarity analysis is appropriate.
***

45

Proud to Be Polite (Civility Experts)

Kool to Be Kind (Molly Manners)

Lesson 1.2, regarding the concept of
respect, begins as follows: “Respect
means many specific things to many
different people but generally it means
showing care and consideration for
others. Having good manners overall
shows that you respect other people.
And in most cases, having an overall
attitude of respect towards others will
mean that other people will forgive you or
give you the benefit of the doubt, on
occasions when you maybe do or say the
wrong thing. [¶] We worry about our
manners and how we treat others
because how we treat people often
determines how others will treat us.”
(ECF No. 86-8 at 15.)

Lesson 7, regarding good personal habits
and positive first impressions, begins as
follows: “For this class topic, review with
students what respect is: showing care
and consideration for others, things, and
yourself. Showing respect for ourselves,
shows others how they should treat us.”
(ECF No. 86-19 at 1.)

Civility Experts claims that defining respect as “showing care and consideration
for others” is something it invented in 1999. (ECF No. 86-36 at 12.) But Civility Experts
asserts this as a proper definition, not a creative or fanciful definition. The range of
words available to define respect in this sense is limited, and tends to cluster around
ideas such as care and consideration. See, e.g., Merriam-Webster Online, s.v.
“respect” (defining respect as, among other things, “a feeling or understanding that
someone or something is important, serious, etc., and should be treated in an
appropriate way” and “an act of giving particular attention: CONSIDERATION”), at
http://www.merriam-webster.com/dictionary/respect (last accessed Feb. 23, 2016).
Under the merger doctrine, then, the parties’ respective definitions of respect are not an
appropriate basis for comparison. The same is true for the final sentence of each of
these passages. The concept is not subject to copyright and the words available to

46

express it are limited.
***
Proud to Be Polite (Civility Experts)

Kool to Be Kind (Molly Manners)

Lesson 1.3, regarding self-respect, lists
nine “behaviors that show poor attitude,”
including (in order): “eye rolling,”
“slouching,” “swearing,” “exasperated
sighs,” “saying mean things,”
“complaining,” and “whining.” (ECF No.
86-8 at 17.)

A portion of lesson 3 titled “Bad Attitude
Bingo” presents fourteen headings for the
instructor to emphasize, each followed by
a short explanation; some of the
headings are (in order): “using bad
words,” “slouching,” “whining,”
“complaining,” “eye rolling,” “big sighs,”
and “saying mean things.” (ECF No. 8617 at 1–2.)

Lesson 1.3 also contains a worksheet
that presents a list of nine potential habits
and asks the students to put a star next
to the habits that show self-respect. The
correct answers are (in the order listed on
the worksheet) “brush your teeth,”
“dressing neat and clean,” “good
posture,” “cleaning your fingernails,”
“taking a bath,” and “washing your hair.”
(ECF No. 86-8 at 19.)

A portion of lesson 7 regarding good
habits presents the following headings for
the instructor to emphasize, each
followed by a short explanation: “brush
your teeth as [sic] least twice a day,”
“shower or take a bath daily,” “brush your
hair and keep fingernails neat and clean,”
“make your bed,” “wear clean clothes,”
“get enough sleep,” “eat well,” “don’t
spend too much time in front of the
screen,” “exercise and get outside to
play!”, “take care of your things,” and
“recycle.” (ECF No. 86-19 at 1–2
(capitalization normalized).)

These two alleged similarities comprise lists of encouraged or discouraged
behaviors. Neither of Civility Experts’ lists displays an original selection or arrangement
of topics. In no case did Molly Manners copy the entirety of any allegedly equivalent
list. The merger doctrine prevents Civility Experts from claiming copyright protection for
the literal wording of the various list items. There are very few ways to say “whining,”
“brush your teeth,” “saying mean things,” and so forth, particularly when children are the
intended audience.

47

***
Proud to Be Polite (Civility Experts)

Kool to Be Kind (Molly Manners)

In a series of lessons regarding proper
introductions, Lesson 2.2 is titled “Rise to
the Occasion” and counsels, among
other things, “to try to remove any
physical barriers between you and the
person you are meeting.” (ECF No. 86-8
at 24.)

In a portion of a lesson titled “The Five
Steps to Friendly Introductions,” step one
is “Stand Up!” and begins, “Rise to the
occasion! You should always stand
when meeting someone for the first time
and eliminate any physical barriers
between you and the person (table, desk,
etc.).” (ECF No. 86-15 at 5.)

This is a slightly more complicated example. Given that physical barriers tend to
thwart introductions before they even begin, the Court cannot say that removing
physical barriers is a typical bit of advice for handling an introduction in-process.
Moreover, Molly Manners’ version suggests slavish copying and misapplication,
conjuring up the comical image of a child shoving aside a table or desk simply to make
a better introduction—which is not likely what Civility Experts had in mind.
Nonetheless, even if removing physical barriers is a bit of advice unique to
Civility Experts, Civility Experts cannot copyright it because it is a process, system, or
discovery. See Warrick, 717 F.3d at 1117–19 & n.7; Palmer, 155 F. Supp. 2d at
1333–34. As for the particular words used to express it, the range is limited, and
therefore subject to merger. See 4-13 Nimmer on Copyright § 13.03[B][3] nn.
167.5–168 and accompanying text (“Particularly in the case of functional works, it may
be necessary to embody near, or even word-for-word, identity [before infringement may
be considered].”). “Rise to the occasion,” moreover, is a stock phrase. None of these
elements presents a valid basis for comparison.
***
48

Proud to Be Polite (Civility Experts)

Kool to Be Kind (Molly Manners)

In the same series of lessons regarding
proper introductions, Lesson 2.3 covers
handshakes and advises, “A firm
handshake tells others that you are
confident, and extending a handshake
gesture is a way of saying ‘I think you are
important’ and ‘I am going to meet you
and make you feel welcome’.” (ECF No.
86-8 at 26.)

Step four of “The Five Steps to Friendly
Introductions” is “Shake Hands” and
begins, “Putting our hand out and
shaking hands with someone is a way of
saying ‘I am going to make an effort to
meet you and make you feel welcome.’”
(ECF No. 86-15 at 5.)

In the same series of lessons, Lesson 2.4
emphasizes eye contact, explaining, “Eye
contact tells the other person you are
listening and makes him or her feel
important. You appear to be a better
listener and look more confident and in
control.” (ECF No. 86-8 at 29.)

Step three of “The Five Steps to Friendly
Introductions” is “Make Eye Contact” and
instructs, “It is very important to look the
person in the eye when you meet them
for the first time. This tells the other
person that you are listening and makes
him or her feel important. You appear to
be a better listener and look confident.”
(ECF No. 86-15 at 5.)

The concepts expressed here cannot be copyrighted, but the words needed to
express these concepts are not so limited such that merger excuses verbatim or nearverbatim copying. Comparing these passages in the substantial similarity analysis is
appropriate.
***
Proud to Be Polite (Civility Experts)

Kool to Be Kind (Molly Manners)

In the same lesson regarding
handshakes, the proper technique is
described as follows: “Extend your hand
vertically with your thumb up. Meet the
other person's hand ‘web to web.’
‘Pump’ once or twice from the elbow.
Release your hand after the shake, even
if the introduction continues. Maintain
good eye contact with the other person
throughout.” (ECF No. 86-8 at 26.)

Step four of “The Five Steps to Friendly
Introductions” describes proper
handshake technique as follows: “Put
your arm out with your thumb straight up,
place hands ‘web to web,’ grasp firmly
but not too tightly, and shake from the
elbow about two-three times. Remember
to look the person in the eye, not at your
hands!” (ECF No. 86-15 at 6.)

49

This is common advice and therefore in the public domain—or, at a minimum, it
is an unprotectable process or system. It is also expressed in succinct, utilitarian
language. The merger doctrine therefore prevents Civility Experts from claiming
copyright protection over the precise words used.
***
Proud to Be Polite (Civility Experts)

Kool to Be Kind (Molly Manners)

Lesson 3.5, regarding giving and
receiving compliments, counsels, “Accept
a compliment graciously by saying a
simple ‘Thank you.’ Don’t say ‘This old
dress? It’s just and [sic] old rag and I’ve
had it for years.’ Such remarks insult the
intelligence of the person giving the
compliment. [¶] This Excerpt by Louise
Fox Protocol Solutions.” (ECF No. 86-8
at 45 (emphasis in original).)

A portion of lesson 8 regarding giving and
receiving compliments advises the
following after receiving a compliment:
“Simply smile and say ‘thank you.’
Whatever you do, don’t take away from
the sincerity of the compliment by
downplaying, denying it, it [sic] or
criticizing yourself. No need to say ‘Well,
it isn’t my best art project by far....’ or ‘this
dress is so old....’ etc. Just smile and
thank the person (with eye contact!)
emember [sic], they are trying to be nice
in their compliment, so don’t take away
from their nice gesture.” (ECF No. 86-20
at 1.)

Civility Experts says that Louise Fox Protocol Solutions “contributed” the portions
attributed to it throughout Proud to Be Polite, suggesting that Civility Experts used the
foregoing with permission. (ECF No. 86-8 at 2.) This raises the question of whether
Civility Experts or Louise Fox is the proper plaintiff with respect to this passage. The
parties briefs provide no helpful discussion on this point.
Assuming for the sake of argument that Civility Experts is the proper plaintiff,
Civility Experts cannot copyright the concept that self-deprecation is inappropriate when
receiving compliments. Nor can Civility Experts copyright the advice to smile and say

50

“thank you” as a substitute to self-deprecation—and there are only so many ways to
express that concept.
After expressing the concept, of course, both of these passages move on to
counterexamples. In other words, they display the same arrangement. The Court
cannot deem this arrangement original, however. Teaching by way of counterexamples
is common, and the counterexamples can only be placed before, after, or interspersed
with the instruction on appropriate behavior.
The fact that both Civility Experts and Molly Manners use a counterexample
about an old dress is unremarkable. In any discussion regarding self-deprecation,
attempting to deflect compliments about clothing with phrases such as “this old thing?”
are typical, and the scenes a faire doctrine therefore denies protection.
***
Proud to Be Polite (Civility Experts)

The Young Sophisticate (Molly
Manners)

In the instructor’s overview to a series of
lessons regarding first impressions, the
manual states that the goal is to help the
students learn “five behaviors that are
expected and respected in social and
business settings”:
“Arising when someone approaches us
“Smiling - an open mouth, toothy,
spontaneous smile
“Offering a firm handshake
“Making direct eye contact
“Introducing yourself and/or initiating
introductions of others.” (ECF No. 86-8
at 20.)

A portion of lesson 1, regarding first
impressions, has the instructor teach the
students “5 steps to friendly
introductions”:
“Stand up!
“Smile!
“See their eyes.
“Shake hands[.]
“Say, ‘Hi, I’m Molly. It’s nice to meet
you.’” (ECF No. 86-24 at 3.)

51

Molly Manners’ “5 steps to friendly introductions” encourages the same five
behaviors listed by Civility Experts, and in almost the same order (eye contact and
shaking hands are swapped). The problem for Civility Experts is that, in its own words,
these are the “five behaviors that are expected . . . in social and business settings.”
Thus, the selection and arrangement are scenes a faire because they are “dictated by
external factors.” Gates Rubber, 9 F.3d at 838.
***
Proud to Be Polite (Civility Experts)

The Young Sophisticate (Molly
Manners)

Lesson 2.1, regarding first impressions,
contains a worksheet listing fourteen
behaviors that “send[] [a] positive
impression,” including: “smiling,” “not
slouching, standing when talking,” “make
direct eye contact,” “study or do your
homework,” “stand up straight,” “tell only
appropriate jokes, see the upside of
things, poke fun at yourself (sometimes)
but not at others,” “remember please and
thank you,” “don’t be late,” “talk about
positive things,” “stay calm,” “let others
talk, don’t interrupt.” (ECF No. 86-8 at
23.)

A portion of lesson 1, regarding first
impressions, asks the instructor to
discuss ten “behaviors that send a
positive first impression,” including:
“smiling,” “saying positive things,”
“making eye-contact,” “being prepared,”
“stand up straight, not slouching,” “tell
appropriate jokes; OK to poke fun at
yourself, but not at others,” “remembering
please and thank you,” “be on time,”
“stay calm,” and “let others talk, don’t
interrupt.” (ECF No. 86-24 at 3.)

Unlike Civility Experts’ previously analyzed lists, the selection and arrangement
of topics in this example display original expression. For the most part, however, the
merger doctrine leaves Civility Experts’ word choice unprotected. The one exception is
the admonition about appropriate humor, which can be expressed in many ways without
repeating Civility Experts’ exact words. For purposes of the substantial similarity
analysis below, the Court will consider Molly Manners’ near-total duplication of Civility

52

Experts’ list, and of the specific language regarding appropriate humor.
***
Proud to Be Polite (Civility Experts)

The Young Sophisticate (Molly
Manners)

Lesson 2.6, regarding remembering
names, presents three headings for the
instructor to emphasize, each followed by
a short explanation; the headings are:
“Make an Association,” “Rhyme time,”
and “Repeat, Repeat, Repeat.” (ECF No.
86-8 at 95.)

In a portion of lesson 1, regarding first
impressions, under the heading
“Remembering Names,” the text
suggests the following memory
techniques: “Repeat that person’s name
in your initial conversation,” “Make a
mental picture of the person doing
something associated with their name,”
and “Find a rhyme associated with the
person’s name and make a mental
picture.” (ECF No. 86-24 at 4.)

This example entirely comprises scenes a faire for memory training, and there
are no word choice similarities unprotected by the merger doctrine. It provides no valid
basis for comparison. Cf. Francorp, Inc. v. Siebert, 210 F. Supp. 2d 961, 966 (N.D. Ill.
2001) (in the context of similar lists, denying copyright protection because “[t]he lists are
organized differently, and the explanations are only similar to the extent they express
the same concept”).
***
Having analyzed the various claims of similarity, do the valid claims present a
jury question regarding substantial similarity? Answering this question implicates a
concept that Nimmer on Copyright has dubbed “fragmented literal similarity.” See 4-13
Nimmer on Copyright § 13.03[A] n.9 and accompanying text. Fragmented literal
similarity refers to the situation in which various verbatim or near-verbatim portions
drawn from many places in the plaintiff’s work appear in the defendant’s work. See id.
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§ 13.03[A][2]. Quoting Nimmer on this point, the Tenth Circuit has stated, “Because
‘[n]o easy rule of thumb can be stated as to the quantum of fragmented literal similarity
permitted without crossing the line of substantial similarity,’ whether works are
substantially similar is ‘a classic jury question.’” Jacobsen, 287 F.3d at 943 (quoting
4-13 Nimmer on Copyright § 13.03[A][2][a] & n.96). This does not mean, however, that
fragmented literal similarity entirely precludes summary judgment. If no reasonable jury
could find substantial similarity out of this fragmented similarity, summary judgment is
proper. See, e.g., Newton v. Diamond, 388 F.3d 1189, 1195 (9th Cir. 2004) (af firming
summary judgment in this context); Louisiana Contractors Licensing Serv., Inc. v. Am.
Contractors Exam Servs., Inc., 13 F. Supp. 3d 547, 553–54 (M.D. La. 2014) (g ranting
summary judgment in this context), aff’d, 594 F. App’x 243 (5th Cir. 2015); Feder, 697
F. Supp. at 1173–77 (same); Russell v. Turnbaugh, 1991 WL 283837, at *3–5 & n.4
(D. Colo. Feb. 7, 1991) (same).
Although the valid comparisons analyzed above present some striking examples
of what appears to be outright copying, the Court finds that no reasonable jury could
conclude that any of them, individually or collectively, relate to portions of Proud to Be
Polite that are “of great qualitative importance to the work as a whole.” Werlin v.
Reader’s Digest Ass’n, Inc., 528 F. Supp. 451, 463 (S.D.N.Y. 1981). Thus, Molly
Manners has not infringed Proud to Be Polite.
VI. CLOSING CONSIDERATIONS
Civility Experts’ frustration with Molly Manners is not surprising. On this record,
there is overwhelming evidence that Molly Manners, as a factual matter, copied from

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Civility Experts Lessons. Indeed, with a fully developed record, Civility Experts might
even be able to show that Molly Manners intentionally set out to rework Civility Experts’
Lessons in hopes of teaching much of the same material without violating Civility
Experts’ copyrights. And the upshot of this Court’s analysis—which could
understandably stick in Civility Experts’ craw—is that Molly Manners succeeded.
The problem for Civility Experts lies in the subject matter. Instructional materials
will necessarily run up against 17 U.S.C. § 102(b), the merger doctrine, and the scenes
a faire doctrine much more than fictional literature, paintings, and so forth.
Nonetheless, the law requires filtering out those nonprotectable elements until the Court
“is left with a core of protected elements that can be compared” to the defendant’s
work. Gates Rubber, 9 F.3d at 838–39. In Civility Experts’ case, the core of
protectable expression is relatively small. Cf. 4-13 Nimmer on Copyright
§ 13.03[B][2][b] text accompanying n.160.10a (“even admitted literal copying is not
actionable when limited to unoriginal expression”).
Moreover, given 17 U.S.C. § 102(b)’s prohibition on copyrighting ideas,
seemingly trivial changes can sometimes prevent copyright liability even with respect to
fairly original instructional materials. The Tenth Circuit’s Warrick case, supra, is good
example. In Warrick, the plaintiff (Lippitt) developed an original theory of managing
complex change in large organizations, and a diagram to explain that theory. 717 F.3d
at 1113–14. The diagram conveyed the message that such change would succeed
only when five elements were present: vision, skills, incentives, resources, and an
action plan. Id. at 1114. The diagram went on to show that, for example, possessing

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all of these elements except vision would lead to confusion rather than success; that
possessing all of these elements except resources would lead to frustration rather than
success; and so forth. Id. In its final form, Lippitt’s diagram was laid out with ovals
surrounding the various elements, plus signs connecting the ovals, and an equals sign
before the final result (success, confusion, frustration, etc.). Id. at 1115.
The defendant (Warrick) admittedly took Lippitt’s diagram and used it in his own
instructional materials almost verbatim. He substituted rectangles for ovals, however,
and arrows for the plus signs and equals signs. Id. at 1116. Although this minimal
change was insufficient to avoid copyright liability, the Tenth Circuit reasoned that
additional alterations, none of them particularly dramatic, probably would have been
sufficient:
Warrick argues Lippitt’s diagram is not eligible for copyright
protection because it consists only of unprotectable ideas or
expression so intertwined with the underlying ideas as to
lose their protection under the merger doctrine. In Warrick’s
view, Lippitt’s diagram expresses a “fundamental” idea about
organizational change and development. It is, he says, a
“statement about objective reality, not a work of fiction or the
imagination.”
Warrick misses the point. Although Lippitt’s diagram may
express an idea, Warrick could express the same ideas in
his own fashion. He might have organized the components
in a pie-chart-style format to show how each is a component
of a larger whole. He could have approached the concept in
a two-column format, listing each defect in the left column
and the missing component in the right column. He could
have simply described the concepts in prose, as he did in his
motion for summary judgment. He could have used his own
words to describe the components. He might have broken
down or combined the components in a different way. He
could have expressed the absence of one of the
components with an “X” over the component . . . .
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Id. at 1117–18 (citations omitted).
To the extent Molly Manners has copied from Civility Experts, the copying mostly
takes these sorts of forms: prose expansions of abbreviated lists, alternative depictions,
etc. The fact that such arguably small changes can prevent copyright liability may be
frustrating to authors such as Civility Experts. Lippitt herself admittedly believed that
“her rights extended even to the ideas underlying her diagram.” Id. at 1119 n.7. But
this view was “mistaken,” id., and remains mistaken as to Civility Experts.
All that said, Molly Manners is mistaken in its belief that defeating Civility Experts’
copyright claim effectively absolves it of all liability. (See ECF No. 85 at 2 n.1.)
Although the meaning of the Settlement Agreement is not before the Court, it is at least
arguable that the Settlement Agreement explicitly, or through the implied covenant of
good faith and fair dealing, requires more of Molly Manners than simply avoiding
copyright infringement. With this in mind, and given the current stage and posture of
the litigation, the parties would be well-advised to seriously consider private mediation,
a settlement conference before the Magistrate Judge, or some other form of alternative
dispute resolution to be held in the near f uture.
Finally, the Court notes two other pending motions: Defendant Felicia Knowles’
and Defendant Shannon Combs’ motions to dismiss for lack of personal jurisdiction.
(ECF Nos. 121, 201.) Both Knowles and Combs are Molly Manners licensees. If the
Court were to conclude that it possesses personal jurisdiction over Knowles and
Combs, Civility Experts’ copyright claim against those two defendants (Count 3) would
necessarily fail in light of this order. Moreover, there would be strong case for
dismissing Civility Experts’ claims for unfair competition (Count 4) and false advertising
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(Count 5), because both appear to hang on copyright infringement. That would leave
only tortious interference with prospective economic advantage (Count 2). There is a
fair argument that, at least as to Knowles and Combs, the current complaint’s
allegations as to tortious interference are bare recitations of the elements. (See ECF
No. 47 ¶¶ 96–107.)
Rather than potentially face all of these arguments, the Court will establish a
deadline by which Civility Experts may move to voluntarily dismiss Knowles and
Combs,14 or to file notice stating that it does not intend to do so. If Civility Experts
chooses the latter option, the Court will proceed to resolve the personal jurisdiction
questions raised by Knowles and Combs.
VII. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Molly Manners’ Early Motion for Partial Summary Judgment (ECF No. 85) is
GRANTED;

2.

Civility Experts claim of copyright infringement (Count 3) is DISMISSED as
against Molly Manners; and

3.

On or before March 21, 2016, Civility Experts shall file either:
a.

a notice of voluntary dismissal of Knowles, Combs, and/or Virta-Gupta, or

b.

a notice stating which of these Defendants it has elected not to voluntarily
dismiss at this time.

14

Civility Experts is also encouraged to include Defendant Monika Virta-Gupta, who is
currently in default, in the course of action it elects to take in this regard. (See ECF No. 202.)

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Dated this 7th day of March, 2016.
BY THE COURT:

William J. Martínez
United States District Judge

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