Often the most important asset of a consulting company is its intellectual property. As such, don’t overlook the potential to protect unique flow diagrams and/or charts that you’ve developed when developing your IP portfolio. In late May of this year, the Tenth Circuit in Enterprise Management Ltd. V. Warrick
found that an organizational management diagram was indeed eligible for copyright protection. The diagram-at-issue depicted a listing of variables and possible outcomes. The alleged infringer incorporated a similar diagram into his course materials and consulting business. After later discovering that the diagram had been created by the Plaintiff, he gave her credit for the work at the bottom of his diagram. However, he argued that the Plaintiff’s diagram was not eligible for copyright protection because it consisted only of unprotected ideas and expressions so intertwined with those ideas that they could not be protected under the “merger doctrine.” Although the District Court was persuaded by this argument, the Tenth Circuit disagreed. The Tenth Circuit focused on the expressive choices that the Plaintiff had made to convey her concepts and offered that such information could have been arranged in a myriad of ways. Her selection of symbols and word choices were persuasive factors.
In the end, what appeared to be a fairly mundane flow diagram was found to be eligible for copyright protection. The lesson here is if you incorporate material that you did not create into your business, make sure that you have the legal right to do so. Copyright cases are fact intensive and are not always straight forward.