For the past few years, I have been writing a chapter for the Colorado Bar Association’s “Annual Survey” publication. Each year we highlight the top legal developments from the previous year — my chapter focuses on intellectual property developments. As I was finishing my write-up for this year’s Annual Survey, I found myself appreciating the Tenth Circuit’s insight into copyright law. I hope the Supreme Court considers the parallels between copyright law and patent law when it decides Alice v. CLS.
Namely, the Tenth Circuit wrote in ENTERPRISE MANAGEMENT LTD., INC. v. Warrick, 717 F.3d 1112 (10th Cir. 2013):
Warrick’s view misses the forest for the trees. Any copyrightable work can be sliced into elements unworthy of copyright protection. See CMM Cable Rep., 97 F.3d at 1514. Books could be reduced to a collection of non-copyrightable words. Music could be distilled into a series of non-copyrightable rhythmic tones. A painting could be viewed as a composition of unprotectable colors. Warrick’s impulse to unpack Lippitt’s diagram into ever-smaller and less-protectable elements is understandable, as copyright jurisprudence tends toward dissection.
Nevertheless, a limiting principle constrains this reductionism. We must focus on whether Lippitt has “selected, coordinated, and arranged” the elements of her diagram in an original way. Feist Publ’ns, 499 U.S. at 358, 111 S.Ct. 1282; Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1004 (2d Cir.1995); see also Feist Publ’ns, 499 U.S. at 349, 111 S.Ct. 1282 (“[I]f the selection and arrangement are original, these elements of the work are eligible for copyright protection.”).