Businesses have several available causes of action to claim when a competitor attempts to replicate the business’ appearance in advertising or its products. Trademark law, such as the Lanham Act, provides many remedies to a business which believes that a competitor is emulating the business and creates a “likelihood of confusion.” Consumer protection laws, like the Florida Unfair and Deceptive Trade Practices Act can also cover such conduct because it qualifies as an unlawful “unfair” or “deceptive” method of competition. Also available to aggrieved businesses is a claim that the competitor violated their copyright. When it is appropriately brought, copyright law provides unique remedies and may provide recovery which might not otherwise be unlawful under trademark or consumer protection laws. However, copyright law has a more limited application in comparison to trademark law in cases involving emulation of design amongst competing businesses, as reflected in the recent case, Off Lease Only, Inc. v. Lakeland Motors, LLC, 20-10825, 2020 WL 5553301 (11th Cir. Sept. 17, 2020). Peter Mavrick is a Fort Lauderdale business litigation lawyer, and also represents clients in business litigation in Miami, Boca Raton, and Palm Beach. The Mavrick Law Firm represents clients in breach of contract litigation, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.
When a competitor emulates the appearance of a company’s products or advertising, the first cause of action to consider is usually under trademark law. Trademark law was enacted to prevent a business emulating or copying the appearance of another. Copyright law is generally more concerned with protecting artists from unlawful reproductions of their work, such as in music, film, or in books. However, in limited scenarios, an aggrieved business may also have the opportunity to initiate business litigation under copywrite law when a competitor copies the artistic qualities of a business’ advertising or products.
Title seventeen of the United States Code protects “in original works of authorship fixed in any tangible medium of expression. 17 U.S.C. § 102(a). However, “[i]n no case does copyright protection for an original work of authorship 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.A. § 102 (b). Compilations of “work formed by the collection and assembling of preexisting materials” such that “the resulting work as a whole constitutes an original work of authorship” may also be protected by copyright. 17 U.S.C. § 101. The copyright protection for compilations only protects “the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.” 17 U.S.C. § 103(b). Cases deciding business litigation involving copyrights for compilation work has made clear that the protection is far more limited than copyright protection for an original work. Intervest Const., Inc. v. Canterbury Estate Homes, Inc., 554 F.3d 914 (11th Cir. 2008) (“Accordingly, any similarity comparison of the works at issue here must be accomplished at the level of protected expression—that is, the arrangement and coordination of those common elements…. In undertaking such a comparison, it should be recalled that the copyright protection in a compilation is ‘thin’”).