IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-10325

Summary Calendar

CONCENTRO LABORATORIES, L.L.C.; JOSEPH O. DIDURO, DC, 

 Plaintiffs - Appellants

v.

PRACTICE WEALTH, LIMITED; DOCTOR ERICH BREITENMOSER, 

 Defendants - Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 5:13-CV-225

Before WIENER, HIGGINSON, and COSTA, Circuit Judges.

PER CURIAM:*

This is a copyright dispute between two chiropractors, each of whom sells 

instructions to other chiropractors for profit. It began when Dr. Joseph DiDuro 

and his affiliated entity, Concerto Laboratories, L.L.C. (jointly, “Appellants”),

created a short video outlining a diagnostic procedure and a blank form to be 

filled in while conducting that procedure. Dr. DiDuro registered both the video 

and the form with the United States Copyright Office. Soon after that, Dr.

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

November 30, 2015

Lyle W. Cayce

Clerk

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No. 15-10325

2

Erich Breitenmoser and his own entity, Practice Wealth Ltd. (“jointly, 

“Appellees”), created their own videos about such a procedure and a form to be 

used while conducting it. Alleging that the latter videos and form infringed on 

the registered copyrights for the former ones, Appellants filed suit in the 

district court alleging federal- and state-law claims against Appellees. On 

cross-motions for summary judgment, the district court dismissed Appellants’ 

federal-law claims with prejudice, and Appellants timely filed a notice of 

appeal.1

“We review a grant of summary judgment de novo under the same 

standard applied by the district court,”2 which requires that “there is no 

genuine dispute as to any material fact and the movant is entitled to judgment 

as a matter of law.”3 We consider those facts “in the light most favorable to the 

nonmoving party and draw all reasonable inferences in its favor.”4

Appellants cannot prevail on appeal of the district court’s order and 

judgment rejecting their claims. “To establish a prima facie case of copyright 

infringement, a copyright owner must prove ‘(1) ownership of a valid copyright, 

and (2) copying [by another] of constituent elements of the work that are 

original.’”5

First, for a copyright to be “owned” it must exist. And, for a copyright to 

exist in a work, such work must be subject to copyright protection, i.e., it must 

be “copyrightable.” Specifically, 17 U.S.C. § 102 provides copyright protection 

to “original works of authorship fixed in any tangible medium of 

 

1 Declining to exercise pendent jurisdiction over the remaining state-law claims, the 

district court dismissed those without prejudice. 

2 Spear Mktg., Inc. v. BancorpSouth Bank, 791 F.3d 586, 599 (5th Cir. 2015) (quoting 

Boone v. Citigroup, Inc., 416 F.3d 382, 392–93 (5th Cir. 2005)). 3 FED. R. CIV. P. 56(a). 

4 Spear Mktg., Inc., 791 F.3d at 599.

5 Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131, 141 (5th Cir. 2004) (quoting Feist 

Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)).

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expression . . . ,”6 but not 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 a work.”7 Stated 

differently, “copyright law protects tangible, original expressions of [such 

things], not [those things] themselves.”8 “The copyright is limited to those 

aspects of the work—termed ‘expression’—that display the stamp of the 

author’s originality.”9 Accordingly, a copyright in a form or a video outlining a 

particular procedure does not extend to the procedure itself. 

Here, the undisputed facts make clear that Appellees’ videos and form 

merely describe, explain, illustrate, or embody a procedure that is identical or 

similar to that described, explained, illustrated, or embodied in the 

Appellants’. Because the Appellants cannot own a copyright in a procedure, it 

does not matter if the procedure presented in one work is the same as or 

identical to that presented in another.10 Instead, only the work itself is 

relevant. Neither the Appellants’ videos nor any aspect of them was dubbed,

and neither the form nor any part of it was transposed. In sum, it is obvious to 

us that the Appellants have chiefly alleged infringement of the procedure itself, 

for which there is no copyright protection.11 And even if the Appellants’ form 

 

6 17 U.S.C. § 102(a).

7 Id. § 102(b).

8 Kepner-Tregoe, Inc. v. Leadership Software, Inc., 12 F.3d 527, 533 (5th Cir. 1994)

9 Id. (quoting Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985)).

10 Id. at 533–34 (“To determine the scope of copyright protection in a close case, a court 

may have to filter out ideas, processes, facts, idea/expression mergers, and other 

unprotectable elements of plaintiff’s copyrighted materials to ascertain whether the 

defendant infringed protectable elements of those materials.”). 11 Even to the extent that Appellants do base their claims on protectable expressions 

as opposed to ideas or processes, the district court correctly granted summary judgment. To 

show factual copying—a necessary element of a copyright infringement claim—without direct 

evidence, a plaintiff must usually “prove that (1) the defendant had access to the copyrighted 

work before creation of the infringing work and (2) the works contain similarities that are 

probative of copying.” Armour v. Knowles, 512 F.3d 147, 152 (5th Cir. 2007). “Alternatively, 

factual copying may be proved by showing such a ‘striking similarity’ between the two works 

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were subject to copyright protection, it is further excluded from such protection 

because it constitutes a “blank form,” which is merely “designed for recording 

information and do[es] not in [itself] convey information.”12

Other judicial, statutory, or contractual law might have provided (or 

might still provide) the protection that Appellants’ seek, but 17 U.S.C. § 102 

does not, at least not in this instance. Having considered the pertinent facts 

and the applicable law, we AFFIRM the district court’s order and the resulting 

judgment for the forgoing reasons and those articulated by the district court. 

 

that the similarity could only be explained by actual copying.” Id. at 152 n.3. Appellants do 

not contest the district court’s ruling that they submitted no evidence of access, and the 

district court correctly determined that the videos were not so strikingly similar as to show 

actual copying. 

12 37 C.F.R § 202.1(d). Appellants’ reliance on the district court’s reasoning in 

SmokEnders, Inc. v. Smoke No More, Inc., No. 73-1637, 1974 WL 20234 (S.D. Fla. Oct. 21, 

1974), is misplaced, as it predates the enactment of 17 U.S.C. § 102. Because we conclude 

that the work was not copyrightable as it relates to the procedure, we need not address 

whether there was some other public domain exclusion.

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