NOT RECOMMENDED FOR FULL
- TEXT PUBLICATION File Name: 15a0705n.06
Case No. 15

- 3179
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

TOMAYDO

- TOMAHHDO, LLC, et al. , Plaintiffs

- Appellants ,

v. GEORGE VOZARY, et al. , Defendants

- Appellees

. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

BEFORE: COLE, Chief Judge; DAUGHTREY and DONALD, Circuit Judges. BERNICE BOUIE DONALD, Circuit Judge. Plaintiff s - appellants claim that defendant s - appellees committed copyright infringement under 17 U.S.C. § 101 et seq
. by misappropriating their recipe book for a menu in a new catering business

. The district court disagreed and granted summary judgme nt to the defendants

. On appeal, plaintiffs assert that their recipe book is a compilation entitled to copyright protection and that defendants violated those protections by creating a substantially similar menu for their catering business

. For the reasons stated below, we AFFIRM the district court.Case No. 15

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Tomaydo

- Tomahhdo, LLC v. Vozary

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- I.
A. Plaintiff s - appel lants are Rosemarie I. Carroll (“Carroll”) ; Tomaydo

- Tomahhdo, LLC; Ketchup to Us, LLC; Tomaydo

- Tomahhdo Ex press, LLC; and Mise

- En

- Place, Inc

. (collectively, “Tomaydo”). Tomaydo brought this lawsuit against defendants George Vozary (“Vozary”) , Clean Plate, Inc. d/b/a Caterolo gy, and Larry Moore (“Moore”) for copyright infringement and other state law claims associated with a restaurant that Carroll and Moore previously co

- owned

. Carroll and Moore are restaurateurs who jointly created and successfully ran Tomaydo

Tomahhdo for s everal years as a restaurant and delivery catering business

. Moore conceived the hit recipes for Tomaydo

- Tomahhdo ’s menu. Together with a group of taste testers, h e perfected his dishes through trial and error

. Moore deemed the most enticing recipes worthy of b eing on Tomaydo

- Tomahhdo’s menu, which consisted of sandwiches, salads, pizza, chicken wings, and other family

- friendly foods. Carroll and Moore open e d a second restaurant in 2004. In 2007, Carroll and Moore parted ways. Carroll purchased Moo re’s interest in the
businesses for about $250,000 , and Moore signed a Share Purchase Agreement (“SPA”). The SPA specified that Moore return “all originals and copies of . . . menu files and development ideas, recipes (current and historical) and training tools (picture boards, build sheets, prep lists, and master order guide).” After a failed attempt to start another restaurant, Moore opened a catering business under the trade name Caterology in 2011. This case arises from Carroll’s creation of the “Tom aydo

- Tomahhdo Recipe Book.” Carroll asserts that she assembled the recipe book in 2012 based on the recipes that Moore developed speci fically for Tomaydo

- Tomahhdo. On February12, 2014, s he applied for copyrightCase No. 15

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Tomaydo

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- protection of the recipe book. Carroll all eges that Vozary, Moore, and Caterology copied Tomaydo

- Tomahhdo’s recipes and use them at Caterology.
B. On February 28, 2014, Tomaydo filed this suit in district court against Vozary, M oore , and Caterology , claiming copyright infringement, breach of fiduciary duty against Vozary, breach of contract against Vozary and against Moore, misappropriation of trade secrets, unfair competition, tortious interference with current and prospective business relationships, and civ il conspiracy. The d efendants subsequently filed a motion for summary judgment on Tomaydo’s copyright infringement claim, which the district court granted. The district court’s reasoning was twofold. First, assuming arguendo that Tomaydo’s recipe book was a copyrightable compilation, the district court concluded that Tomaydo failed to demonstrate that the defendants infringed on any creative work in the recipe book. Second, the district court noted that there were material differences between the dishe s in Tomaydo’s recipe book and on Caterology’s menu. Accordingly, the recipe book and the menu we re not substantially similar. Based on its findings , the district court granted summary judgment to the defendants and declined to exercise supplemental juri sdiction over Tomaydo’s other claims. Tomaydo timely appealed their copyright claim

. II.
A. We review a district court’s grant of summary judgment de novo. Jones v. Blige , 558 F.3d 485, 490 (6th Cir. 2009). Federal Rule of Civil Procedure 56(a) states that summary judgment is appropriate “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.” We review “ the factual evidenceCase No. 15

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- in the light most favorable to the non

- moving pa rty ” as well as “ draw all reasonable inferences in that party’s favor.” Jones , 558 F.3d at 490. In copyright infringement cases, “granting summary judgment, particularly in favor of a defendant, is a practice to be used sparingly.” Wickham v. Knoxville Int’l Energy Exposition, Inc. , 739 F .2d 1094, 1097 (6th Cir. 1984). Copyright infringement claims have two elements. Plaintiffs must prov e (1) that they

own a copyright on a work and (2) that the defendant copied that work

. See id. T he United
States Constitution requires that the work be “ original. ” U.S. Const. art. I, § 8, cl. 8; Feist Publ’ns, Inc. v. Rural Tel. Serv. Co. , 499 U.S. 340, 346 (1991) (considering whether a telephone directory is original)

. To be original, the work must be “original t o the author.” Id. at 343. In other words, it must be “independently created by the author” and possess “at least some minimal degree of creativity.” Id. Copyright protection does not extend to an author’s work if creativity is so “utterly lacking or s o trivial as to be virtually nonexistent.” Id. at 359. While facts cannot be copyrighted, compilations of facts generally can be

. Id. at 344.
A compilation is a “work formed by the collection and assembling of preexisting materials or of
data that are s elected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original authorship.” 17 U.S.C. § 101

. The Supreme Court opined that a “compilation author typically chooses which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers.” Feist , 499 U.S. at 348. When a compilation’s selection and arrangem ent are produced in an original way, the compilation is entitled to copyright protection. Id. at 349. However, the copyright protection extends only to the original aspect of the compilation ; it does not protect the underlying unoriginal elements. Id. a t 348.Case No. 15

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- W hen comparing two works , w e begin our analysis by eliminating the unoriginal elem ents, as they are unprotected. See Kohus v. Mariol , 328 F.3d 848, 853 (6th Cir. 2013) (relying on Feist ). Then we consider “whether the allegedly infringing work i s substantially similar to the protectable elements of the original.” Id. We analyze this question from the intended audience’s point of view. Id. at 857.
B. To fulfill the first element of a copyright claim, Tomaydo must demonstrate that its “Tomaydo

- Tomahhdo Recipe Book” is copyrightable. See Wickham , 739 F.2d at 1097. In other words, they must show that the compilation is original

— i.e., it has some creative aspect

. See Feist , 499 U.S. at 346. Tomaydo asserts that its recipe book is creative because Moore’s
trial

- and

- error process for d eveloping recipes embodies the selection, coordination, and arrangement necessary to demonstrate creativity

. Furthermore , Tomaydo asserts that its menu

was purposefully ordered a particular way, each item on the menu existed because Carroll and Moore specifically chose it, and the items were chosen in coordination with each other. Accordingly, Tomaydo advances that the recipe book constitutes a copyrightable compilation

. We start with what is unorigin al. Kohus , 328 F.3d at 853. Here, the recipes themselves do n ot enjoy copyright projection. Lambing , 142 F.3d at 434; see also Feist , 499 U.S. at 361 (excluding the factual data

— telephone listings

— from its consideration of whether a telephone directory is a copyrightable compilation). The list of ingredients is merely a factual statement, and as previously discussed, facts are not copyrightable

. Lambing , 142 F.3d at 434. Furthermore, a recipe’s instructions , as functional directions, are statutorily e xcluded from copyright protection. 17 U.S.C. § 102(b); id. Accordingly, Tomaydo must demonstrate that their recipe book , as a compilation, is original

. See Publications Int’l, Ltd. v. Meredith Corp. ,Case No. 15

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- 88 F.3d 473, 481 (7th Cir. 1996) (e xplaining that rec ipe books can show originality and obtain copyright protection if “the authors lace their directions for producing dishes with musings about the spiritual nature of cooking or reminiscences they associate with the wafting odors of certain dishes in various stages of preparation”). Despite their arguments, Tomaydo does not point to anything demonstrating that the recipe book is an original compilation

. While Tomaydo stresses that they purposefully selected and arranged the menu items , Tomaydo never identi fies what is original and creative about their
process . Their description merely characterizes how recipes are developed and further perfected

. S ee Feist , 499 U.S. at 363 (“[N]o one disputes that [the telephone company] undertook the task
of alphabetizing the names itself. But there is nothing remotely creative about [that process].”)

. Tomaydo also assert s that the menu items are purposefully coordinated with each other, but

never identifies any creative manner by which they are

. As a matt er of law, Tomaydo has not shown that any aspect of their recipe book is original and would therefore enjoy copyright protection. See Feist , 499 U.S. at 362 (concluding that the telephone directory was “a garden

- variety white pages directory, devoid of ev en the slightest trace of creativity”). Accordingly , the defendants could not have violated Tomaydo’s proprietary rights.
III. Because Tomaydo’s recipe book is not original, it does not amount to a copyright protected compilation

. As a result, the defendants could not have infringed on Tomaydo’s copyright. Therefore, we AFFIRM the district court’s grant of summary judgme nt for the defendants.