Home Legend, LLC v. Mannington Mills, Inc.

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-13440
________________________
D.C. Docket No. 4:12-cv-00237-HLM
HOME LEGEND, LLC,
Plaintiff-Appellee–
Counter Defendant,
versus
MANNINGTON MILLS, INC.,
Defendant-Appellant–
Counter Claimant,
POWER DEKOR GROUP CO. LTD.,
Consol. Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(April 29, 2015)
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Before ED CARNES, Chief Judge, JILL PRYOR and HIGGINBOTHAM, * Circuit
Judges.
ED CARNES, Chief Judge:
I.
Mannington Mills, Inc. appeals the grant of summary judgment in favor of
Home Legend, LLC, that Mannington’s registered copyright in its “Glazed Maple”
design is invalid.
A.
Because this is Mannington’s appeal of the grant of summary judgment
against it, we view all evidence and draw all reasonable inferences in the light most
favorable to Mannington, the non-moving party. See Hamilton v. Southland
Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012). In that light, the facts
are these.
Mannington and Home Legend both sell (among other products) laminate
wood flooring. Laminate flooring consists of three functional layers, starting from
the bottom: a balancing or stabilizing layer, often made of water-resistant resin; a
core board of wood fiber mixed with resin and pressed at high temperatures to
form a strong and solid board; and a transparent wear-resistant overlay. Because
the resulting flooring is not much to look at, laminate flooring manufacturers add a
*
Honorable Patrick E. Higginbotham, United States Circuit Judge for the Fifth Circuit,
sitting by designation.
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decorative layer called “décor paper” between the core board and the transparent
overlay. This décor paper features a piece of two-dimensional artwork and could
depict any design capable of two-dimensional representation, though in practice
the décor paper usually appears to be a typical flooring material like wood or stone
that looks better (and costs more) than unadorned laminate flooring.
The copyright at issue in this case covers Mannington’s décor paper design
called “Glazed Maple,” which is a huge digital photograph depicting fifteen
stained and apparently time-worn maple planks. That appearance, though, is only
an appearance. In 2008, three Mannington employees created the Glazed Maple
design not from aged planks but from raw wood. After initial research and
brainstorming about home decor trends, they decided to create an aged and rustic
look. The team did not seek out an actual aged wood floor from which to create
the design but instead “envision[ed what] a floor could look like after” twenty or
thirty years, including the effects “age and wear and patina” might have on the
planks.
The Mannington team began with between fifty and seventy-five raw,
smooth-milled white maple planks. With a selection of hand tools, they added
gouges, dents, nail holes, ripples, “chatter marks,” and other surface imperfections
to the wood in an effort to make it look like floorboards that had been walked
across for many years. Then, using rags, sponges, and dry brushes, they applied
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layers of stain to the planks, more darkly and heavily at the edges of the boards to
create the appearance of increased wear in the boards’ centers. And as the team
intended, the stain pooled in some of the textured areas they had created, making
darker spots on the wood. They selected and applied more than one stain color.
The team chose to accentuate some of the naturally occurring marks and to de-
emphasize others, and they used more stain and paint to add effects like
shadowing, simulated mineral streaks, and dark spots that were not present on the
raw wood.
Once they were satisfied with these prototype planks, the Mannington team
experimented with various selections and arrangements of the boards to choose
combinations of planks that the team thought would look good in a home. They
then chose about thirty of the planks to photograph with a high-resolution digital
scanner. One of the team members then made more changes to the digital images,
deleting areas that were “a little heavy,” retouching other areas, and altering the
contrast where boards were “too dark or too light” in comparison with the group as
a whole. The team printed out the resulting images, selected fifteen of them, and
made a composite of those fifteen plank images into a single 120-inch-by-100-inch
digital image — the Glazed Maple design.
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B.
The United States Register of Copyrights registered Mannington’s copyright
in its Glazed Maple design in November 2010. The copyright covers the two-
dimensional Glazed Maple design. Although Mannington sells flooring bearing its
Glazed Maple design under the name “Time Crafted Maple,” it is the image, not
the flooring product, that is the subject of the copyright and thus at issue in this
case.
In September 2012, Mannington discovered that its competitor Home
Legend was selling laminate flooring products with designs that it alleges were
“virtually identical in every respect” to the Glazed Maple design. Mannington
requested that Home Legend stop selling the allegedly infringing products. On
October 8, 2012, Home Legend responded by filing suit in the district court,
seeking a declaratory judgment that Mannington’s copyright was invalid.
Mannington counterclaimed for copyright infringement and moved for a
preliminary injunction, a motion that the district court denied.1
At the close of discovery, Home Legend moved for summary judgment,
arguing that Mannington’s registered Glazed Maple copyright did not cover
copyright-eligible subject matter. The district court granted summary judgment to
Home Legend on three alternative grounds. One ground was that Mannington’s
1
Mannington filed an interlocutory appeal of the order denying its preliminary-injunction
motion, but we dismissed that appeal without prejudice on the joint motion of the parties.
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Glazed Maple design lacked the requisite originality to be an “original work[] of
authorship” eligible for copyright protection under 17 U.S.C. § 102(a). Another
was that the Glazed Maple design was “simply not separable from the functional
element of the flooring,” and that “the 2-D artwork [of the Glazed Maple design]
would not be marketable if it were separated from the functional elements of the
flooring.” On that basis, the district court concluded that the Glazed Maple
copyright was a “functional component of the flooring itself” and therefore not
eligible for copyright. See 17 U.S.C. § 101 (“[T]he design of a useful article, as
defined in this section, shall be considered a pictorial, graphic, or sculptural work
only if, and only to the extent that, such design incorporates pictorial, graphic, or
sculptural features that can be identified separately from, and are capable of
existing independently of, the utilitarian aspects of the article.”). The district
court’s remaining alternative ground for summary judgment was that
Mannington’s copyright was directed to an “idea or process,” namely the process
of recreating the appearance of rustic and aged maple planks. See 17 U.S.C.
§ 102(b) (“In no case does copyright protection for an original work of authorship
extend to any idea, procedure, [or] process . . . .”). This is Mannington’s appeal.
II.
We review de novo a grant of summary judgment. Hamilton, 680 F.3d at
1318. And as we mentioned above, we view all evidence and draw all inferences
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in the light most favorable to the non-moving party. Id. Summary judgment is
appropriate only 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); Hamilton, 68 F.3d at 1318.
Mannington challenges each of the three alternative grounds that the district
court gave as the basis for its decision. First, Mannington contends that the Glazed
Maple design is not a slavish copy of a work of nature but instead is an artwork
Mannington created that is sufficiently original to merit copyright protection.
Second, it argues that the artwork is both physically and conceptually separable
from the laminate flooring to which it has been applied, and that, as a result, the
district court’s ruling that the copyright covered a “useful article” was error. And,
third, Mannington contends that the copyright covers the two-dimensional Glazed
Maple design, not Mannington’s procedure or process for creating it, and thus the
district court’s ruling that the copyright was directed to an uncopyrightable idea or
process was error.
A.
Mannington contends that the district court erred when it found that the
Glazed Maple design was not original enough to be copyright eligible. To qualify
for copyright protection, a work must be original. 17 U.S.C. § 102(a) (“Copyright
protection subsists . . . in original works of authorship fixed in any tangible
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medium of expression.”) (emphasis added); Feist Publ’ns v. Rural Tel. Serv. Co.,
Inc., 499 U.S. 340, 351, 111 S. Ct. 1282, 1290 (1991) (“As we have explained,
originality is a constitutionally mandated prerequisite for copyright protection.”).
Whether a work is sufficiently original to merit copyright protection is a question
of fact. See BUC Int’l Corp. v. Int’l Yacht Council Ltd., 489 F.3d 1129, 1151
(11th Cir. 2007) (noting that “[t]he jury’s determination that BUC’s copyrights
were valid was necessarily based on several factual findings, including that BUC’s
compilation contained original elements of creative authorship.”).
Originality is not novelty. Feist, 499 U.S. at 358, 111 S. Ct. at 1294.
Instead, copyrightable originality requires only “independent creation” by the
author “plus a modicum of creativity.” Id. at 346, 111 S. Ct. at 1288. In other
words, the originality requirement is a low bar. Original Appalachian Artworks,
Inc. v. Toy Loft, Inc., 684 F.2d 821, 824 (11th Cir. 1982); see also Feist, 499 U.S.
at 358, 111 S. Ct. at 1294 (describing the degree of creativity required as
“minimal”). The requirement is that the work possess “some creative spark, no
matter how crude, humble or obvious.” Feist, 499 U.S. at 345, 111 S. Ct. at 1287
(quotation marks omitted). As the Supreme Court has noted, “the requisite level of
creativity is extremely low; even a slight amount will suffice.” Feist, 499 U.S. at
345, 111 S. Ct. at 1287; see also Montgomery v. Noga, 168 F.3d 1282, 1290 (11th
Cir. 1999) (same). For example, we have noted that a photograph of another
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artwork, so long as it involved minimal creativity in the “selection of lighting,
shading, timing, angle, and film” is sufficiently original for copyright protection.
Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1215 (11th Cir. 2000).
1.
The district court determined that Mannington’s Glazed Maple design was
merely “a design depicting or copying elements found in nature — the look of a
rustic, aged wooden floor.” Mannington’s design team began with raw wooden
planks, which had naturally occurring wood grain. Because the shape of that wood
grain is a product of nature, not of Mannington, it would not be eligible for
copyright protection. See Feist, 499 U.S. at 346, 111 S. Ct. at 1288 (copyright is
“limited to original intellectual conceptions of the author”) (quotation marks
omitted); see also Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc., 528 F.3d
1258, 1265 (10th Cir. 2008) (“[W]orks are not copyrightable to the extent they do
not involve any expression apart from the raw facts in the world.”). Nor is the
rectangular shape of the plank anything but what the plank’s function dictates —
and thus that shape is also not copyrightable. See 17 U.S.C. § 101 (“[T]he design
of a useful article . . . shall be considered a pictorial, graphic, or sculptural work
only if, and only to the extent that, such design incorporates . . . features that can
be identified separately from, and are capable of existing independently of, the
utilitarian aspects of the article.”).
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And while photographs of natural objects may be original, it is difficult to
imagine that the “selection of lighting, shading, timing, angle, and film” in a scan
of a raw wood plank — the goal being to duplicate as exactly as possible the
appearance of that plank in a digital medium so it could be faithfully reproduced
on laminate flooring — would be sufficiently original to support a copyright in
such an individual image. See Leigh, 212 F.3d at 1215 (describing those selections
as the “elements of artistic craft” protected by a photographer’s copyright);
Meshwerks, 528 F.3d at 1265 (“[T]he facts in this case unambiguously show that
Meshwerks did not make any decisions regarding lighting, shading, the
background in front of which a vehicle would be posed, the angle at which to pose
it, or the like — in short, its models reflect none of the decisions that can make
depictions of things or facts in the world, whether Oscar Wilde or a Toyota Camry,
new expressions subject to copyright protection.”).
The Mannington designers did not, however, scan raw wooden planks.
Instead the evidence, viewed in the light most favorable to Mannington, shows that
they imagined what a deeply stained maple floor might look like after years of
wear, and then they used stain, paint, hand tools, and digital photo retouching to
express their concept first on wood and then as digital images. Ideas alone are not
protectable. See 17 U.S.C. § 102(b) (“In no case does copyright protection . . .
extend to any idea . . . .”). But if the expression of an idea is sufficiently creative,
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that expression is protectable. And when the level of creativity in an expression is
at issue, testimony about the ideas that informed the expression is evidence of that
creativity. Mannington’s idea of a distressed maple floor is not protectable, but
Mannington’s testimony about that idea shows that the idea’s expression in the
Glazed Maple design was the product of creativity, not a slavish copy of nature.
Perhaps that expression is not highly creative, but it does not need to be. The
decisions Mannington made in the location and character of the marks it added to
the boards render its contributions creative enough to hurdle the low bar of
copyrightable originality. See Feist, 499 U.S. at 345, 111 S. Ct. at 1287.
This case is not like the Tenth Circuit’s decision in Meshwerks Inc. v.
Toyota Motor Sales U.S.A., Inc., 528 F.3d 1258 (10th Cir. 2008). That court held
that Meshwerks’ computer wireframe models of Toyota vehicles lacked
protectable originality over the original Toyota vehicles. Id. at 1266–67. The key
to that holding was that Meshwerks merely copied Toyota’s work, adding nothing
original to the “unadorned Toyota vehicles — the car as car.” Id. at 1265; see also
id. at 1264 (“[W]e think Meshwerks’ models are not so much independent
creations as (very good) copies of Toyota’s vehicles.”). To determine whether
Meshwerks’ models were original, the court asked whether Meshwerks had “an
earlier work in mind” when it created its models and the court answered that
Meshwerks did: it had Toyota’s earlier work in mind. Id. at 1268 (quotation
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marks omitted). Here, by contrast, the evidence shows that Mannington did not
have another work in mind. At most, it had in mind a genre: rustic flooring. It
created a digital artwork in that genre. The creative work was all Mannington’s. 2
Home Legend, for its part, analogizes Mannington’s creative efforts to the
work in the “sweat of the brow” cases. The decisions in those cases granted broad
copyrights over the facts themselves in factual compilations as “a reward for the
hard work that went into compiling” them. Feist, 499 U.S. at 352, 111 S. Ct. at
1291. But those decisions were abrogated by the Copyright Act of 1976, which
made clear that originality, not labor, was the prerequisite of copyright. See 17
U.S.C. § 102(a); Feist, 499 U.S. at 352–55, 111 S. Ct. at 1291–93. In Home
Legend’s analogy, Mannington’s work creating the Glazed Maple design was
nothing more than mere labor, “sweat of the brow” that is not copyrightable. But
the analogy does not fit.
The effort that creative labor requires does not render the labor uncreative.
Drafting and editing a novel usually requires months or years of toil over a
2
The district court compared the facts of this case with those in Proline Concrete Tools,
Inc. v. Dennis, No. 07-cv-2310, 2013 U.S. Dist. Lexis 188384 (S.D. Cal. Mar. 28, 2013)
(unpublished). The Proline court ruled that the Copyright Office had not acted arbitrarily or
capriciously when it denied copyright protection to Proline for concrete stamp casts “molded
from real stone complete with cut marks and defects.” Id. at *17. That court agreed with the
Copyright Office’s determination that the casts were mere “slavish copies” of “existing stones or
rocks.” Id. at *17–18. But this is not Proline. Although rocks and stones are “elements found in
nature,” see id., so far as the record shows, nature in its boundless invention has yet to produce a
single “rustic, aged wooden floor” matching the Glazed Maple design. Unlike Proline,
Mannington did not simply copy a naturally occurring thing. It transformed the elements found
in nature and those dictated by utility — that is, the raw maple planks — into the expression of
its rustic floor idea.
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keyboard. A masterpiece painting may require many preliminary studies and
countless hours of exacting brushwork. Carving or assembling a sculpture may
involve backbreaking physical exertion. All of those are examples of creative
labor that is creative. So is Mannington’s selection and preparation of raw maple
planks to express the rustic-floor idea in the Glazed Maple design. Cf. Feist, 499
U.S. at 361, 111 S. Ct. at 1296 (describing uncopyrightable facts as those that exist
in the world without the intervention of the purported copyright holder). It
involved more than mere sweat-of-the-brow labor. The design did not lack
copyrightable originality.
2.
And even if copyright did not protect the altered individual plank images,
the Glazed Maple design is more than that. It is a compilation expressing original
selection and creative coordination of elements. A compilation even of
uncopyrightable elements is eligible for copyright protection, 17 U.S.C. § 103, so
long as the compiler independently selects or arranges the elements and “display[s]
some minimal level of creativity” in doing so. Feist, 499 U.S. at 358, 111 S. Ct. at
1294; see also id. at 359, 111 S. Ct. at 1244(“[T]he vast majority of compilations
will pass this test . . . . [except those in the] narrow category of works in which the
creative spark is utterly lacking or so trivial as to be virtually nonexistent.”).
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In Feist, the Supreme Court held that a telephone directory that listed the
name, town, and phone number of every subscriber in a region, and that did so in
alphabetical order by name, was not entitled to copyright protection because the
selection, coordination and arrangement of those preexisting facts was “not only
unoriginal, [but] practically inevitable.” Id. at 363, 111 S. Ct. at 1297. Not so
here. Mannington’s designers independently selected the planks used in the
Glazed Maple design, and they exercised “some minimal level of creativity” in the
selection or arrangement of those planks. Instead of randomly choosing planks or
indiscriminately using all of the fifty to seventy-five planks, Mannington’s
designers exercised their creativity in choosing thirty planks that best captured
their conception of an aged and rustic maple floor. Then, after those planks were
scanned and retouched, the designers further exercised artistic judgment in
selecting the fifteen of those thirty images that they believed looked best together.
Mannington’s selection and coordination of those images showed originality
sufficient to exceed the low bar required to sustain a copyright. See Feist, 499 U.S.
at 348, 111 S. Ct. at 1289; BellSouth Adver. & Publ’g Corp. v. Donnelly Info.
Publ’g, Inc., 999 F.2d 1436, 1440 (11th Cir. 1993) (“[A] compiler’s selection,
arrangement and coordination, if original are the only protectable elements of a
factual compilation.”). For this reason too the Glazed Maple design was
sufficiently original to be copyrightable.
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B.
The district court also concluded that the Glazed Maple design was not
copyrightable because it is inseparable from a “useful article” — namely the
flooring to which Mannington applied the design. The court reasoned that neither
the flooring nor the Glazed Maple design would be marketable without the other:
“Certainly, the laminate flooring would not be marketable if its functional elements
were separated from the artistic elements, and, conversely, the 2-D artwork would
not be marketable if it were separated from the functional elements of the
flooring.” We disagree. First, the conclusion was based not on evidence but on
conjecture. Second, the facts of this case, viewed in the light most favorable to
Mannington, disprove the non-marketability conjecture. Mannington’s evidence is
that Home Legend sold flooring decorated with a virtually identical copy of
Mannington’s Glazed Maple design. If that is true, the design has some value;
otherwise Home Legend would not have copied it. The only obstacle to
Mannington demanding payment for the use of its design on other flooring is the
district court’s ruling that Mannington lacks protectable rights in its design.
The district court also reasoned that the Glazed Maple design had the
function of hiding wear to the floor. Mannington counters that protection is the
purpose of the “wear layer” of the flooring and that the decorative layer is just that:
decorative. But even if placing an otherwise copyrightable two-dimensional
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design on a product serves the secondary function of hiding wear or other
imperfections in the product, that is not enough to invalidate the copyright
protection for the design. Hanging an Ansel Adams print over an unsightly water
stain on a living room wall might make the print “functional” in the same way the
district court found the Glazed Maple design to be, but it would have no effect on
the copyright in the work itself.
The Copyright Act provides protection for pictorial and graphic works,
including “two-dimensional . . . works of . . . applied art.” 17 U.S.C. § 101. It
goes on to state,
Such works shall include works of artistic craftsmanship insofar as
their form but not their mechanical or utilitarian aspects are
concerned; the design of a useful article, as defined in this section,
shall be considered a pictorial[] [or] graphic . . . work only if, and only
to the extent that, such design incorporates pictorial[] [or] graphic . . .
features that can be identified separately from, and are capable of
existing independently of, the utilitarian aspects of the article.
Id. (emphasis added). Separability for the purpose of assessing copyright
eligibility of a useful article’s design means that the design is “either physically
severable from the utilitarian article or conceptually severable.” Norris Indus., Inc.
v. Int’l Tel. & Tel. Corp., 696 F.2d 918, 923 (11th Cir. 1983) (emphasis added).
The Glazed Maple design at issue here meets both tests: it is both physically and
conceptually severable from the Time Crafted Maple flooring to which
Mannington applied it. The flooring and the design are physically severable: the
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evidence shows that Mannington sells otherwise identical flooring that uses décor
paper other than the Glazed Maple design. The interchangeability of the paper
designs in the manufacturing process necessarily implies that the design and the
flooring to which Mannington applies it are physically separate objects.
The Glazed Maple design is also conceptually severable from use as a
decoration on Mannington’s flooring. The design might as easily be applied to
wallpaper or as the veneer of a picture frame. One amicus even suggests that
nothing (save perhaps good taste) prevents the “Glazed Maple image from being
printed, framed, and hung on a wall as art.” Brief of Amicus Curiae Resilient
Floor Covering Institute in Support of Appellant at 20. This is obviously true, as it
is of any two-dimensional image. Because the design is both physically and
conceptually severable from the flooring to which Mannington applied it, the
district court erred when it determined the design was an uncopyrightable useful
article.
C.
Finally, the district court found that “the Copyright [in the Glazed Maple
design] is more accurately directed toward a process or idea, which is not a proper
subject for copyright protection.” The court’s reasoning for this conclusion was
that “[a]lthough the Copyright at issue is for 2-D artwork, Mannington’s response
brief and the majority of its evidence focus on the idea of reproducing the look of
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rustic hardwood and natural wood grain, and on the process that Mannington used
to obtain that result.”
Mannington focused its evidence and arguments on its process for creating
the image because Home Legend’s primary challenge to the validity of
Mannington’s copyright was the contention that the design lacked copyrightable
originality. Mannington showed copyrightable originality by presenting evidence
about how it created the design by altering the natural appearance of the wood.
That does not mean that Mannington tried to copyright the process through which
it produced the design. 3 The copyright protects only the specific two-dimensional
digital artwork design that Mannington registered, a design that it created by
combining digital images of fifteen maple planks, stained to appear time worn and
combined in a specific design. See 17 U.S.C. §§ 101 & 102.
III.
Mannington’s work is sufficiently original to qualify for copyright
protection. That protection is unaffected by the design’s use as décor paper on
Mannington’s laminate flooring. And Mannington’s copyright in that work covers
3
We also reject Home Legend’s argument that Mannington’s patents protecting methods
for finishing wood imply that its copyright in a design depicting finished wood must also be
directed toward those same methods. The use of a patented process to create an original design
does not mean that the design is not copyrightable. Our intellectual property system recognizes
one set of protections for inventions including processes (the patent laws) and another set of
protections for art and writings (the copyright laws). The two may be related but they are
distinct. See U.S. Const. art. I, § 8, cl. 8 (authorizing Congress to grant “Authors and Inventors”
protection for both “Writings and Discoveries”); compare 17 U.S.C. § 102 (copyrightable subject
matter), with 35 U.S.C. § 101 (inventions patentable).
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the two-dimensional image the registration says it covers, not the process by which
the image was created.
Mannington owns a valid copyright, even if the protection that copyright
affords it is not particularly strong. Because much of the expression in
Mannington’s finished Glazed Maple design still reflects the uncopyrightable
features of each plank — features like the shape of the natural underlying wood
grain and the plank’s shape, both of which are in the public domain —
Mannington’s copyright gives it the limited protection of a derivative work.
Warren Publ’g, Inc. v. Microdos Data Corp., 115 F.3d 1509, 1515 n.16 (11th Cir.
1997) (“A creative work is entitled to the most protection, followed by a derivative
work, and finally by a compilation.”). The copyright protects only the original
elements contributed by Mannington. See 17 U.S.C. § 103(b) (“The copyright in
a . . . derivative work extends only to the material contributed by the author of such
work, as distinguished from the preexisting material employed in the work . . . .”).
This limited protection and the restricted opportunities for creativity inherent in the
genre of faux-aged floorboards mandate a copyright that extends (as Mannington
concedes) only to identical and near-identical copies of the Glazed Maple
design — to copies made, for example, by photographing the design from
Mannington’s Time Crafted Maple flooring and making trivial color alterations.
Mannington would have no copyright-infringement claim against someone who
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used processes like Mannington’s to make his own aged-maple designs, so long as
those final designs were his own expressions, not copies of Mannington’s work.
The district court’s judgment declaring that Mannington’s copyright is
invalid is due to be reversed and the case remanded for further proceedings
consistent with this opinion.
REVERSED and REMANDED.
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