Morrissey v. Procter & Gamble

Brief Fact Summary. Procter & Gamble (Defendant) used a contest rule very similar to that which Morrissey (Plaintiff) had copyrighted and used in a sales promotion contest.

Synopsis of Rule of Law. A rule incidental to the operation of a noncopyrightable contest cannot itself be copyrighted if the information it conveys is so simple that there are only a number of ways in which it can be expressed.

Facts. Morrissey (Plaintiff) copyrighted the rules it had used in a sweepstakes contest revolving around the contestants’ social security numbers.  While conducting a similar type contest, Procter & Gamble (Defendant) used a very similar rule.  It explained that the name, address, and social security number of the participant should be printed on paper or a box top; that the official rules were available at local dealers; that the social security number of another family member could be used if one did not have his own number, etc.  When Morrissey (Plaintiff) brought suit for copyright infringement, the district court found the contest itself to be noncopyrightable.  It then held that the rule springing from it contained no original creative authorship and was noncopyrightable.  Morrissey (Plaintiff) appealed.

Issue. If a rule incidental to the operation of a noncopyrightable contest conveys information so simple that there are only a number of ways in which it can be expressed, can the rule be copyrighted?

Held. (Aldrich, C.J.)  No.  If the information conveyed in a rule incidental to the operation of a noncopyrightable contest is so simple that there are only a number of ways in which it can be expressed, the rule cannot be copyrighted.  Permitting such rules to be copyrighted would be like giving a copyright on the contest itself to someone smart enough to simply copyright the number of rule variations possible for running the contest.  The rule at issue here was of this nature and therefore was not copyrightable by Morrissey (Plaintiff).  Affirmed.

Discussion. The court relied on its interpretation of Baker v. Selden, 101 U.S. 99 (1879), as holding that certain kinds of expression are noncopyrightable, such as utilitarian forms.  This flies in the face of commentators who continue to argue that Baker v. Selden held only that otherwise prohibited copying that is necessary to make use of a noncopyrightable system or art does not constitute infringement, whereas copying for explanatory purposes does.