Greene v. Ablon
1:09-cv-10937
D. Mass.Dec 4, 2012Background
- Greene originated the CPS Approach in 1993 and authored The Explosive Child, later collaborating with Ablon at MGH.
- Greene sued Ablon and MGH in 2009 for copyright infringement, asserting protection in The Explosive Child and related materials.
- The court in Greene I limited claims to protectable expressions and ruled the CPS Approach as a concept not copyrightable, and that Treating Explosive Kids is a joint work.
- The current issue is to identify protectable elements in The Explosive Child via a dissection analysis before trial.
- Greene’s chart (Exh. 4) is used as the primary reference for dissection, distinguishing protected expressions from unprotected ideas or fragments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether The Explosive Child contains protectable expression | Greene identifies protectable expressions in the book via Exh. 4. | Only the CPS concept is protectable, not the idea; dissection may exclude non-expressive elements. | Yes; the book contains protectable expression. |
| Whether the CPS Approach concept is protectable | The CPS approach’s expression in the book is original and protectable. | The CPS Approach as an idea is not protectable. | Idea not protectable; expressions of the idea are protectable. |
| What portions of Plan B and related CPS expressions are protectable | Plan B steps and phrases like ‘your explanation guides your intervention’ are protectable expressions. | Only specific phrasing may be protected, not general ideas or standard steps. | Representative Plan B expressions are protectable. |
| Effect of Treating Explosive Kids being a joint work on dissection | Treating Explosive Kids should exclude from dissection those elements shared as joint work. | Treating Explosive Kids may contain protectable material differing from The Explosive Child; joint authorship affects liability. | To be addressed; court notes need briefing at status conference. |
Key Cases Cited
- Feist Publ’ns Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) (copyright requires original, minimal creativity; not all elements are protectable)
- T-Peg, Inc. v. Vermont Timber Works, Inc., 459 F.3d 97 (1st Cir. 2006) (dissection to identify protectable elements; copying test via ordinary observer)
- Yankee Candle Co. v. Bridgewater Candle Co., 259 F.3d 25 (1st Cir. 2001) (morality of dissection; protectable expression vs ideas)
- Soc’y of Holy Transfiguration Monastery, Inc. v. Gregory, 689 F.3d 29 (1st Cir. 2012) (short phrases may not be protectable; context matters)
- Coquico, Inc. v. Rodríguez-Miranda, 562 F.3d 62 (1st Cir. 2009) (scenes a faire doctrine; avoid protecting standard elements)
- Concrete Mach. Co. v. Classic Lawn Ornaments, Inc., 843 F.2d 600 (1st Cir. 1988) (merger doctrine; protectable expression must be separable from idea)