May 11

Thin Copyrights


The problem with 'thin' copyrights is that small changes to the copyrighted work can make it impossible to enforce. So, what makes a copyright thin? When the level of creativity involved in creating the original work is low, then a copyright is identified as thin.  This just begs a question. What does a low level of creativity mean? 

When there are limited number of ways to display something and there are a large number of existing displays, then a slightly new version is not very original and will not be entitled to much weight. The copyright is thin. 

For example, a recent case found the copyright to a floor plan for a single family home was thin. The plaintiff held copyrights in 2800 floor plans for single family homes. A quick search online can find thousands more available for downloading. Much of the work in a floor plan is not original and is fixed by function, code and the like. Therefore, there is substantial similarities among floor plans. 

The seventh circuit court of appeals upheld a summary judgment dismissing a copyright infringement lawsuit for a floorplan in Design Basics, LLC v. Signature Construction, Inc., Case No. 19-2716 (7th Cir. Apr. 23, 2021). Even a floorplan of Design Basics that was marked up was changed enough to avoid allowing the case to go forward according to the appellate court. Its decision relied heavily on another case: Design Basics, LLC v. Lexington Homes, Inc., Case No. 16-3817 (7th Cir., June 6, 2017), which also held no infringement could be proved. The appellate court held that no reasonable jury could find unlawful appropriation. Even the design based on the marked-up Design Basics plan was different enough to be noninfringing as a matter of law.

If you are relying on copyright to protect your intangible property, make sure that the level of creativity involved is substantial. A 'thin' copyright will not provide the type of protection you need to protect your most valuable iP.


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