defendants' books concerns non-copyrightable material, or if the substantiality of the similarity between the copyrightable elements is or is not "so clear as to fall outside the range of reasonably disputed fact questions requiring resolution by a jury," summary judgment is appropriate. Id. at 239. However, as long as reasonable minds could differ on the issue of substantial similarity, summary judgment is inappropriate.
The determination of substantial similarity is necessarily fact intensive and requires a detailed examination of both works. Williams v. Crichton, 84 F.3d 581, 583 (2d Cir. 1996). However, when a copyrighted work includes both protectible and unprotectible elements, a court must filter out all unprotectible elements and "take care to inquire only whether 'the protectible elements, standing alone, are substantially similar.'" Id. at 588 (citing Knitwaves, Inc. v. Lollytogs Ltd, 71 F.3d 996, 1002 (2d Cir. 1995).
To evaluate claims of nonliteral infringement of a computer program, the Second Circuit in Computer Assocs. Int'l., Inc. v. Altai, Inc., 982 F.2d 693, 706 (2d Cir. 1992), applied an abstraction-filtration-comparison test to decide the issue of substantial similarity. The Court stated that courts should first abstract the allegedly infringed work into its constituent parts, filter out non-copyrightable or unprotected elements, and then compare the "remaining kernel" of protected expression with the allegedly infringing program. Id. One prominent copyright scholar has called for the application of this test to all copyright cases. See 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.03[F], at 13-120 (1996). However, as the Altai Court itself noted, its abstraction-filtration-comparison test was nothing new. Rather, in creating the test the Court drew upon familiar copyright doctrines such as merger and scenes-a-faire. Altai, 982 F.2d at 706. Indeed the abstraction component of the test was based on Judge Learned Hand's opinion in Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d. Cir. 1930), cert. denied, 282 U.S. 902, 75 L. Ed. 795, 51 S. Ct. 216 (1931). An elaborate abstraction-filtration-comparison for each and every element of an alleged infringement, which may be helpful to deal with a complex computer program when the claim is nonliteral similarity, may not be necessary in a straightforward textual copyright case. In a case such as this, simply examining the relevant parts of a copyrighted work will allow a court to apply settled copyright principles and thereby filter out unprotected elements.
A. Unprotected Elements
1. Facts are not copyrightable.
In Feist Pubs., Inc. v. Rural Telephone Serv. Co., 499 U.S. 340, 357-58, 113 L. Ed. 2d 358, 111 S. Ct. 1282 (1991), the Supreme Court reaffirmed the fundamental copyright principle that facts are not copyrightable. The Court held, however, that the selection and arrangement of facts in a compilation is copyrightable if that selection and arrangement is original. Id. at 358. Although a medical textbook is not a pure compilation of facts in the same way a telephone book is, the facts in a medical textbook nevertheless are not copyrightable; the over-all selection and arrangement of these facts, if original, may be copyrightable. One commentator has labelled textbooks nonfiction narratives and stated that the copyright in textbooks stems from two sources:
(1) the author's original narration and expression of facts, ideas, theories, and research; and (2) the author's original selection, coordination, and arrangement of material.