         Case: 14-13440   Date Filed: 04/29/2015     Page: 1 of 20


                                                                     [PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 14-13440
                     ________________________

                 D.C. Docket No. 4:12-cv-00237-HLM



HOME LEGEND, LLC,

                                                            Plaintiff-Appellee–
                                                            Counter Defendant,

                                versus

MANNINGTON MILLS, INC.,

                                                         Defendant-Appellant–
                                                            Counter Claimant,

POWER DEKOR GROUP CO. LTD.,

                                                   Consol. Defendant-Appellee.

                     ________________________

              Appeal from the United States District Court
                 for the Northern District of Georgia
                    ________________________

                            (April 29, 2015)
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Before ED CARNES, Chief Judge, JILL PRYOR and HIGGINBOTHAM, * Circuit
Judges.

ED CARNES, Chief Judge:

                                                I.

       Mannington Mills, Inc. appeals the grant of summary judgment in favor of

Home Legend, LLC, that Mannington’s registered copyright in its “Glazed Maple”

design is invalid.

                                               A.

       Because this is Mannington’s appeal of the grant of summary judgment

against it, we view all evidence and draw all reasonable inferences in the light most

favorable to Mannington, the non-moving party. See Hamilton v. Southland

Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012). In that light, the facts

are these.

       Mannington and Home Legend both sell (among other products) laminate

wood flooring. Laminate flooring consists of three functional layers, starting from

the bottom: a balancing or stabilizing layer, often made of water-resistant resin; a

core board of wood fiber mixed with resin and pressed at high temperatures to

form a strong and solid board; and a transparent wear-resistant overlay. Because

the resulting flooring is not much to look at, laminate flooring manufacturers add a


       *
          Honorable Patrick E. Higginbotham, United States Circuit Judge for the Fifth Circuit,
sitting by designation.


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decorative layer called “décor paper” between the core board and the transparent

overlay. This décor paper features a piece of two-dimensional artwork and could

depict any design capable of two-dimensional representation, though in practice

the décor paper usually appears to be a typical flooring material like wood or stone

that looks better (and costs more) than unadorned laminate flooring.

      The copyright at issue in this case covers Mannington’s décor paper design

called “Glazed Maple,” which is a huge digital photograph depicting fifteen

stained and apparently time-worn maple planks. That appearance, though, is only

an appearance. In 2008, three Mannington employees created the Glazed Maple

design not from aged planks but from raw wood. After initial research and

brainstorming about home decor trends, they decided to create an aged and rustic

look. The team did not seek out an actual aged wood floor from which to create

the design but instead “envision[ed what] a floor could look like after” twenty or

thirty years, including the effects “age and wear and patina” might have on the

planks.

      The Mannington team began with between fifty and seventy-five raw,

smooth-milled white maple planks. With a selection of hand tools, they added

gouges, dents, nail holes, ripples, “chatter marks,” and other surface imperfections

to the wood in an effort to make it look like floorboards that had been walked

across for many years. Then, using rags, sponges, and dry brushes, they applied



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layers of stain to the planks, more darkly and heavily at the edges of the boards to

create the appearance of increased wear in the boards’ centers. And as the team

intended, the stain pooled in some of the textured areas they had created, making

darker spots on the wood. They selected and applied more than one stain color.

The team chose to accentuate some of the naturally occurring marks and to de-

emphasize others, and they used more stain and paint to add effects like

shadowing, simulated mineral streaks, and dark spots that were not present on the

raw wood.

      Once they were satisfied with these prototype planks, the Mannington team

experimented with various selections and arrangements of the boards to choose

combinations of planks that the team thought would look good in a home. They

then chose about thirty of the planks to photograph with a high-resolution digital

scanner. One of the team members then made more changes to the digital images,

deleting areas that were “a little heavy,” retouching other areas, and altering the

contrast where boards were “too dark or too light” in comparison with the group as

a whole. The team printed out the resulting images, selected fifteen of them, and

made a composite of those fifteen plank images into a single 120-inch-by-100-inch

digital image — the Glazed Maple design.




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                                              B.

        The United States Register of Copyrights registered Mannington’s copyright

in its Glazed Maple design in November 2010. The copyright covers the two-

dimensional Glazed Maple design. Although Mannington sells flooring bearing its

Glazed Maple design under the name “Time Crafted Maple,” it is the image, not

the flooring product, that is the subject of the copyright and thus at issue in this

case.

        In September 2012, Mannington discovered that its competitor Home

Legend was selling laminate flooring products with designs that it alleges were

“virtually identical in every respect” to the Glazed Maple design. Mannington

requested that Home Legend stop selling the allegedly infringing products. On

October 8, 2012, Home Legend responded by filing suit in the district court,

seeking a declaratory judgment that Mannington’s copyright was invalid.

Mannington counterclaimed for copyright infringement and moved for a

preliminary injunction, a motion that the district court denied.1

        At the close of discovery, Home Legend moved for summary judgment,

arguing that Mannington’s registered Glazed Maple copyright did not cover

copyright-eligible subject matter. The district court granted summary judgment to

Home Legend on three alternative grounds. One ground was that Mannington’s

        1
        Mannington filed an interlocutory appeal of the order denying its preliminary-injunction
motion, but we dismissed that appeal without prejudice on the joint motion of the parties.


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Glazed Maple design lacked the requisite originality to be an “original work[] of

authorship” eligible for copyright protection under 17 U.S.C. § 102(a). Another

was that the Glazed Maple design was “simply not separable from the functional

element of the flooring,” and that “the 2-D artwork [of the Glazed Maple design]

would not be marketable if it were separated from the functional elements of the

flooring.” On that basis, the district court concluded that the Glazed Maple

copyright was a “functional component of the flooring itself” and therefore not

eligible for copyright. See 17 U.S.C. § 101 (“[T]he design of a useful article, as

defined in this section, shall be considered a pictorial, graphic, or sculptural work

only if, and only to the extent that, such design incorporates pictorial, graphic, or

sculptural features that can be identified separately from, and are capable of

existing independently of, the utilitarian aspects of the article.”). The district

court’s remaining alternative ground for summary judgment was that

Mannington’s copyright was directed to an “idea or process,” namely the process

of recreating the appearance of rustic and aged maple planks. See 17 U.S.C.

§ 102(b) (“In no case does copyright protection for an original work of authorship

extend to any idea, procedure, [or] process . . . .”). This is Mannington’s appeal.

                                           II.

      We review de novo a grant of summary judgment. Hamilton, 680 F.3d at

1318. And as we mentioned above, we view all evidence and draw all inferences



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in the light most favorable to the non-moving party. Id. Summary judgment is

appropriate only if “the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a); Hamilton, 68 F.3d at 1318.

      Mannington challenges each of the three alternative grounds that the district

court gave as the basis for its decision. First, Mannington contends that the Glazed

Maple design is not a slavish copy of a work of nature but instead is an artwork

Mannington created that is sufficiently original to merit copyright protection.

Second, it argues that the artwork is both physically and conceptually separable

from the laminate flooring to which it has been applied, and that, as a result, the

district court’s ruling that the copyright covered a “useful article” was error. And,

third, Mannington contends that the copyright covers the two-dimensional Glazed

Maple design, not Mannington’s procedure or process for creating it, and thus the

district court’s ruling that the copyright was directed to an uncopyrightable idea or

process was error.

                                          A.

      Mannington contends that the district court erred when it found that the

Glazed Maple design was not original enough to be copyright eligible. To qualify

for copyright protection, a work must be original. 17 U.S.C. § 102(a) (“Copyright

protection subsists . . . in original works of authorship fixed in any tangible



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medium of expression.”) (emphasis added); Feist Publ’ns v. Rural Tel. Serv. Co.,

Inc., 499 U.S. 340, 351, 111 S. Ct. 1282, 1290 (1991) (“As we have explained,

originality is a constitutionally mandated prerequisite for copyright protection.”).

Whether a work is sufficiently original to merit copyright protection is a question

of fact. See BUC Int’l Corp. v. Int’l Yacht Council Ltd., 489 F.3d 1129, 1151

(11th Cir. 2007) (noting that “[t]he jury’s determination that BUC’s copyrights

were valid was necessarily based on several factual findings, including that BUC’s

compilation contained original elements of creative authorship.”).

      Originality is not novelty. Feist, 499 U.S. at 358, 111 S. Ct. at 1294.

Instead, copyrightable originality requires only “independent creation” by the

author “plus a modicum of creativity.” Id. at 346, 111 S. Ct. at 1288. In other

words, the originality requirement is a low bar. Original Appalachian Artworks,

Inc. v. Toy Loft, Inc., 684 F.2d 821, 824 (11th Cir. 1982); see also Feist, 499 U.S.

at 358, 111 S. Ct. at 1294 (describing the degree of creativity required as

“minimal”). The requirement is that the work possess “some creative spark, no

matter how crude, humble or obvious.” Feist, 499 U.S. at 345, 111 S. Ct. at 1287

(quotation marks omitted). As the Supreme Court has noted, “the requisite level of

creativity is extremely low; even a slight amount will suffice.” Feist, 499 U.S. at

345, 111 S. Ct. at 1287; see also Montgomery v. Noga, 168 F.3d 1282, 1290 (11th

Cir. 1999) (same). For example, we have noted that a photograph of another



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artwork, so long as it involved minimal creativity in the “selection of lighting,

shading, timing, angle, and film” is sufficiently original for copyright protection.

Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1215 (11th Cir. 2000).

                                            1.

       The district court determined that Mannington’s Glazed Maple design was

merely “a design depicting or copying elements found in nature — the look of a

rustic, aged wooden floor.” Mannington’s design team began with raw wooden

planks, which had naturally occurring wood grain. Because the shape of that wood

grain is a product of nature, not of Mannington, it would not be eligible for

copyright protection. See Feist, 499 U.S. at 346, 111 S. Ct. at 1288 (copyright is

“limited to original intellectual conceptions of the author”) (quotation marks

omitted); see also Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc., 528 F.3d

1258, 1265 (10th Cir. 2008) (“[W]orks are not copyrightable to the extent they do

not involve any expression apart from the raw facts in the world.”). Nor is the

rectangular shape of the plank anything but what the plank’s function dictates —

and thus that shape is also not copyrightable. See 17 U.S.C. § 101 (“[T]he design

of a useful article . . . shall be considered a pictorial, graphic, or sculptural work

only if, and only to the extent that, such design incorporates . . . features that can

be identified separately from, and are capable of existing independently of, the

utilitarian aspects of the article.”).



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      And while photographs of natural objects may be original, it is difficult to

imagine that the “selection of lighting, shading, timing, angle, and film” in a scan

of a raw wood plank — the goal being to duplicate as exactly as possible the

appearance of that plank in a digital medium so it could be faithfully reproduced

on laminate flooring — would be sufficiently original to support a copyright in

such an individual image. See Leigh, 212 F.3d at 1215 (describing those selections

as the “elements of artistic craft” protected by a photographer’s copyright);

Meshwerks, 528 F.3d at 1265 (“[T]he facts in this case unambiguously show that

Meshwerks did not make any decisions regarding lighting, shading, the

background in front of which a vehicle would be posed, the angle at which to pose

it, or the like — in short, its models reflect none of the decisions that can make

depictions of things or facts in the world, whether Oscar Wilde or a Toyota Camry,

new expressions subject to copyright protection.”).

      The Mannington designers did not, however, scan raw wooden planks.

Instead the evidence, viewed in the light most favorable to Mannington, shows that

they imagined what a deeply stained maple floor might look like after years of

wear, and then they used stain, paint, hand tools, and digital photo retouching to

express their concept first on wood and then as digital images. Ideas alone are not

protectable. See 17 U.S.C. § 102(b) (“In no case does copyright protection . . .

extend to any idea . . . .”). But if the expression of an idea is sufficiently creative,



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that expression is protectable. And when the level of creativity in an expression is

at issue, testimony about the ideas that informed the expression is evidence of that

creativity. Mannington’s idea of a distressed maple floor is not protectable, but

Mannington’s testimony about that idea shows that the idea’s expression in the

Glazed Maple design was the product of creativity, not a slavish copy of nature.

Perhaps that expression is not highly creative, but it does not need to be. The

decisions Mannington made in the location and character of the marks it added to

the boards render its contributions creative enough to hurdle the low bar of

copyrightable originality. See Feist, 499 U.S. at 345, 111 S. Ct. at 1287.

      This case is not like the Tenth Circuit’s decision in Meshwerks Inc. v.

Toyota Motor Sales U.S.A., Inc., 528 F.3d 1258 (10th Cir. 2008). That court held

that Meshwerks’ computer wireframe models of Toyota vehicles lacked

protectable originality over the original Toyota vehicles. Id. at 1266–67. The key

to that holding was that Meshwerks merely copied Toyota’s work, adding nothing

original to the “unadorned Toyota vehicles — the car as car.” Id. at 1265; see also

id. at 1264 (“[W]e think Meshwerks’ models are not so much independent

creations as (very good) copies of Toyota’s vehicles.”). To determine whether

Meshwerks’ models were original, the court asked whether Meshwerks had “an

earlier work in mind” when it created its models and the court answered that

Meshwerks did: it had Toyota’s earlier work in mind. Id. at 1268 (quotation



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marks omitted). Here, by contrast, the evidence shows that Mannington did not

have another work in mind. At most, it had in mind a genre: rustic flooring. It

created a digital artwork in that genre. The creative work was all Mannington’s. 2

       Home Legend, for its part, analogizes Mannington’s creative efforts to the

work in the “sweat of the brow” cases. The decisions in those cases granted broad

copyrights over the facts themselves in factual compilations as “a reward for the

hard work that went into compiling” them. Feist, 499 U.S. at 352, 111 S. Ct. at

1291. But those decisions were abrogated by the Copyright Act of 1976, which

made clear that originality, not labor, was the prerequisite of copyright. See 17

U.S.C. § 102(a); Feist, 499 U.S. at 352–55, 111 S. Ct. at 1291–93. In Home

Legend’s analogy, Mannington’s work creating the Glazed Maple design was

nothing more than mere labor, “sweat of the brow” that is not copyrightable. But

the analogy does not fit.

       The effort that creative labor requires does not render the labor uncreative.

Drafting and editing a novel usually requires months or years of toil over a
       2
           The district court compared the facts of this case with those in Proline Concrete Tools,
Inc. v. Dennis, No. 07-cv-2310, 2013 U.S. Dist. Lexis 188384 (S.D. Cal. Mar. 28, 2013)
(unpublished). The Proline court ruled that the Copyright Office had not acted arbitrarily or
capriciously when it denied copyright protection to Proline for concrete stamp casts “molded
from real stone complete with cut marks and defects.” Id. at *17. That court agreed with the
Copyright Office’s determination that the casts were mere “slavish copies” of “existing stones or
rocks.” Id. at *17–18. But this is not Proline. Although rocks and stones are “elements found in
nature,” see id., so far as the record shows, nature in its boundless invention has yet to produce a
single “rustic, aged wooden floor” matching the Glazed Maple design. Unlike Proline,
Mannington did not simply copy a naturally occurring thing. It transformed the elements found
in nature and those dictated by utility — that is, the raw maple planks — into the expression of
its rustic floor idea.


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keyboard. A masterpiece painting may require many preliminary studies and

countless hours of exacting brushwork. Carving or assembling a sculpture may

involve backbreaking physical exertion. All of those are examples of creative

labor that is creative. So is Mannington’s selection and preparation of raw maple

planks to express the rustic-floor idea in the Glazed Maple design. Cf. Feist, 499

U.S. at 361, 111 S. Ct. at 1296 (describing uncopyrightable facts as those that exist

in the world without the intervention of the purported copyright holder). It

involved more than mere sweat-of-the-brow labor. The design did not lack

copyrightable originality.

                                           2.

      And even if copyright did not protect the altered individual plank images,

the Glazed Maple design is more than that. It is a compilation expressing original

selection and creative coordination of elements. A compilation even of

uncopyrightable elements is eligible for copyright protection, 17 U.S.C. § 103, so

long as the compiler independently selects or arranges the elements and “display[s]

some minimal level of creativity” in doing so. Feist, 499 U.S. at 358, 111 S. Ct. at

1294; see also id. at 359, 111 S. Ct. at 1244(“[T]he vast majority of compilations

will pass this test . . . . [except those in the] narrow category of works in which the

creative spark is utterly lacking or so trivial as to be virtually nonexistent.”).




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      In Feist, the Supreme Court held that a telephone directory that listed the

name, town, and phone number of every subscriber in a region, and that did so in

alphabetical order by name, was not entitled to copyright protection because the

selection, coordination and arrangement of those preexisting facts was “not only

unoriginal, [but] practically inevitable.” Id. at 363, 111 S. Ct. at 1297. Not so

here. Mannington’s designers independently selected the planks used in the

Glazed Maple design, and they exercised “some minimal level of creativity” in the

selection or arrangement of those planks. Instead of randomly choosing planks or

indiscriminately using all of the fifty to seventy-five planks, Mannington’s

designers exercised their creativity in choosing thirty planks that best captured

their conception of an aged and rustic maple floor. Then, after those planks were

scanned and retouched, the designers further exercised artistic judgment in

selecting the fifteen of those thirty images that they believed looked best together.

Mannington’s selection and coordination of those images showed originality

sufficient to exceed the low bar required to sustain a copyright. See Feist, 499 U.S.

at 348, 111 S. Ct. at 1289; BellSouth Adver. & Publ’g Corp. v. Donnelly Info.

Publ’g, Inc., 999 F.2d 1436, 1440 (11th Cir. 1993) (“[A] compiler’s selection,

arrangement and coordination, if original are the only protectable elements of a

factual compilation.”). For this reason too the Glazed Maple design was

sufficiently original to be copyrightable.



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                                          B.

      The district court also concluded that the Glazed Maple design was not

copyrightable because it is inseparable from a “useful article” — namely the

flooring to which Mannington applied the design. The court reasoned that neither

the flooring nor the Glazed Maple design would be marketable without the other:

“Certainly, the laminate flooring would not be marketable if its functional elements

were separated from the artistic elements, and, conversely, the 2-D artwork would

not be marketable if it were separated from the functional elements of the

flooring.” We disagree. First, the conclusion was based not on evidence but on

conjecture. Second, the facts of this case, viewed in the light most favorable to

Mannington, disprove the non-marketability conjecture. Mannington’s evidence is

that Home Legend sold flooring decorated with a virtually identical copy of

Mannington’s Glazed Maple design. If that is true, the design has some value;

otherwise Home Legend would not have copied it. The only obstacle to

Mannington demanding payment for the use of its design on other flooring is the

district court’s ruling that Mannington lacks protectable rights in its design.

      The district court also reasoned that the Glazed Maple design had the

function of hiding wear to the floor. Mannington counters that protection is the

purpose of the “wear layer” of the flooring and that the decorative layer is just that:

decorative. But even if placing an otherwise copyrightable two-dimensional



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design on a product serves the secondary function of hiding wear or other

imperfections in the product, that is not enough to invalidate the copyright

protection for the design. Hanging an Ansel Adams print over an unsightly water

stain on a living room wall might make the print “functional” in the same way the

district court found the Glazed Maple design to be, but it would have no effect on

the copyright in the work itself.

      The Copyright Act provides protection for pictorial and graphic works,

including “two-dimensional . . . works of . . . applied art.” 17 U.S.C. § 101. It

goes on to state,

      Such works shall include works of artistic craftsmanship insofar as
      their form but not their mechanical or utilitarian aspects are
      concerned; the design of a useful article, as defined in this section,
      shall be considered a pictorial[] [or] graphic . . . work only if, and only
      to the extent that, such design incorporates pictorial[] [or] graphic . . .
      features that can be identified separately from, and are capable of
      existing independently of, the utilitarian aspects of the article.
Id. (emphasis added). Separability for the purpose of assessing copyright

eligibility of a useful article’s design means that the design is “either physically

severable from the utilitarian article or conceptually severable.” Norris Indus., Inc.

v. Int’l Tel. & Tel. Corp., 696 F.2d 918, 923 (11th Cir. 1983) (emphasis added).

The Glazed Maple design at issue here meets both tests: it is both physically and

conceptually severable from the Time Crafted Maple flooring to which

Mannington applied it. The flooring and the design are physically severable: the



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evidence shows that Mannington sells otherwise identical flooring that uses décor

paper other than the Glazed Maple design. The interchangeability of the paper

designs in the manufacturing process necessarily implies that the design and the

flooring to which Mannington applies it are physically separate objects.

       The Glazed Maple design is also conceptually severable from use as a

decoration on Mannington’s flooring. The design might as easily be applied to

wallpaper or as the veneer of a picture frame. One amicus even suggests that

nothing (save perhaps good taste) prevents the “Glazed Maple image from being

printed, framed, and hung on a wall as art.” Brief of Amicus Curiae Resilient

Floor Covering Institute in Support of Appellant at 20. This is obviously true, as it

is of any two-dimensional image. Because the design is both physically and

conceptually severable from the flooring to which Mannington applied it, the

district court erred when it determined the design was an uncopyrightable useful

article.

                                         C.

       Finally, the district court found that “the Copyright [in the Glazed Maple

design] is more accurately directed toward a process or idea, which is not a proper

subject for copyright protection.” The court’s reasoning for this conclusion was

that “[a]lthough the Copyright at issue is for 2-D artwork, Mannington’s response

brief and the majority of its evidence focus on the idea of reproducing the look of



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rustic hardwood and natural wood grain, and on the process that Mannington used

to obtain that result.”

       Mannington focused its evidence and arguments on its process for creating

the image because Home Legend’s primary challenge to the validity of

Mannington’s copyright was the contention that the design lacked copyrightable

originality. Mannington showed copyrightable originality by presenting evidence

about how it created the design by altering the natural appearance of the wood.

That does not mean that Mannington tried to copyright the process through which

it produced the design. 3 The copyright protects only the specific two-dimensional

digital artwork design that Mannington registered, a design that it created by

combining digital images of fifteen maple planks, stained to appear time worn and

combined in a specific design. See 17 U.S.C. §§ 101 & 102.

                                               III.

       Mannington’s work is sufficiently original to qualify for copyright

protection. That protection is unaffected by the design’s use as décor paper on

Mannington’s laminate flooring. And Mannington’s copyright in that work covers

       3
          We also reject Home Legend’s argument that Mannington’s patents protecting methods
for finishing wood imply that its copyright in a design depicting finished wood must also be
directed toward those same methods. The use of a patented process to create an original design
does not mean that the design is not copyrightable. Our intellectual property system recognizes
one set of protections for inventions including processes (the patent laws) and another set of
protections for art and writings (the copyright laws). The two may be related but they are
distinct. See U.S. Const. art. I, § 8, cl. 8 (authorizing Congress to grant “Authors and Inventors”
protection for both “Writings and Discoveries”); compare 17 U.S.C. § 102 (copyrightable subject
matter), with 35 U.S.C. § 101 (inventions patentable).


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the two-dimensional image the registration says it covers, not the process by which

the image was created.

      Mannington owns a valid copyright, even if the protection that copyright

affords it is not particularly strong. Because much of the expression in

Mannington’s finished Glazed Maple design still reflects the uncopyrightable

features of each plank — features like the shape of the natural underlying wood

grain and the plank’s shape, both of which are in the public domain —

Mannington’s copyright gives it the limited protection of a derivative work.

Warren Publ’g, Inc. v. Microdos Data Corp., 115 F.3d 1509, 1515 n.16 (11th Cir.

1997) (“A creative work is entitled to the most protection, followed by a derivative

work, and finally by a compilation.”). The copyright protects only the original

elements contributed by Mannington. See 17 U.S.C. § 103(b) (“The copyright in

a . . . derivative work extends only to the material contributed by the author of such

work, as distinguished from the preexisting material employed in the work . . . .”).

This limited protection and the restricted opportunities for creativity inherent in the

genre of faux-aged floorboards mandate a copyright that extends (as Mannington

concedes) only to identical and near-identical copies of the Glazed Maple

design — to copies made, for example, by photographing the design from

Mannington’s Time Crafted Maple flooring and making trivial color alterations.

Mannington would have no copyright-infringement claim against someone who



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used processes like Mannington’s to make his own aged-maple designs, so long as

those final designs were his own expressions, not copies of Mannington’s work.

      The district court’s judgment declaring that Mannington’s copyright is

invalid is due to be reversed and the case remanded for further proceedings

consistent with this opinion.

      REVERSED and REMANDED.




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