## Facts

- John J. Thornton authored a humor quiz, “The Official Baby Boomer Qualifying Exam” (BBQE), consisting of 29 questions and an essay, and used it in connection with his “Baby Boomer Headquarters” website.
- A stage production, “Menopause the Musical,” was authored by Jeanette Linders; J. Jargon Co. held rights to the production; and TOC Productions, Inc. produced performances nationwide.
- Thornton alleged that “Menopause the Musical” programs included a “Take the Age Test” feature that reproduced BBQE content without permission.
- Thornton discovered the “age test” in a Tampa performance program in 2006 and filed a federal copyright infringement action the same year.
- Thornton obtained a copyright registration for BBQE in 2006; defendants challenged the work’s protectability and the registration’s validity based on alleged prior publication and alleged misstatements.
- The court decided cross-motions for summary judgment and related evidentiary motions concerning damages proof, expert testimony, and witness disclosures.

## Issues

1. Whether BBQE contained protectable original expression (including as a compilation) and whether the 2006 registration was invalid due to alleged misstatements or publication issues.
2. Whether defendants’ “Take the Age Test” copied protectable elements of BBQE and was substantially similar, warranting summary judgment for either side.
3. Whether the claims were barred by the Copyright Act’s three-year limitations period or were timely under a discovery-based accrual rule.
4. Whether plaintiff produced competent, non-speculative evidence of actual damages, and what showing was required to pursue disgorgement of defendants’ profits.
5. Whether defendants were entitled to summary judgment on defenses such as implied license, fair use, laches, or unclean hands.

## Decision

- The court denied plaintiff’s motion for partial summary judgment on infringement liability and denied defendants’ summary judgment request on noninfringement.
- The court held that BBQE met the minimal originality requirement through its selection, arrangement, and original narrative content; the registration was not voided on the summary judgment record.
- The court found genuine disputes of material fact on copying and substantial similarity, including evidence that numerous questions were identical or nearly identical and often appeared in the same sequence.
- The court rejected a statute-of-limitations bar at summary judgment, applying a discovery accrual rule and treating the 2006 discovery and filing as timely.
- The court granted defendants partial summary judgment barring recovery of actual damages because plaintiff’s proof was speculative and insufficiently tied to market value or licensing practice.
- The court allowed plaintiff to pursue disgorgement of profits attributable to the alleged infringement, subject to proving a causal nexus between the infringement and the claimed revenues.
- The court declined to grant summary judgment on fact-intensive defenses (including fair use and equitable defenses) and resolved evidentiary motions in a manner that limited damages evidence and shaped trial proof.

## Legal Principles

- Copyright originality is a low threshold and may be satisfied by a compilation’s selection and arrangement and other original expressive content, even if individual factual elements are unprotectable.
- Summary judgment is improper where evidence of copying and substantial similarity permits reasonable inferences for either side.
- Under a discovery-based accrual rule, a copyright claim accrues when the plaintiff knew or had reason to know of the infringement.
- Actual damages under 17 U.S.C. § 504 require competent, non-speculative proof tied to the work’s value, licensing, or other measurable injury.
- Disgorgement of profits under 17 U.S.C. § 504 requires a causal link between the infringement and the gross revenues sought; only revenue reasonably attributable to the infringing use is recoverable.
- Implied license requires evidence of the copyright owner’s intent to permit the challenged use; absent such evidence, the defense generally cannot be resolved in the defendant’s favor on summary judgment.

## Conclusion

The court allowed the infringement claim to proceed to trial because protectability, copying, substantial similarity, and several defenses presented factual disputes, but it limited remedies by excluding actual damages as inadequately supported and restricting plaintiff to a profits-based recovery upon proof of attribution.


Thornton v. J. Jargon Co., 580 F. Supp. 2d 1261 (M.D. Fla. 2008)