[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 9, 2002
THOMAS K. KAHN
No. 01-14511 CLERK
________________________
D. C. Docket No. 00-01662 CV-ORL-31J
HARRY PALMER,
STAR’S EDGE, INC.,
Plaintiffs-Appellants,
versus
ELDON BRAUN,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 9, 2002)
Before TJOFLAT and COX, Circuit Judges, and HANCOCK*, District Judge.
COX, Circuit Judge:
*
Honorable James H. Hancock, U.S. District Judge for the Northern District
of Alabama, sitting by designation.
Harry Palmer, the owner of Star’s Edge, Inc., and the creator of a self-help
course called Avatar, sought a preliminary injunction against Eldon Braun, alleging
that Braun’s book, The Source Course, infringed Palmer’s copyright in the Avatar
Course materials. The district court denied the request for a preliminary injunction
after determining that Palmer was unlikely to succeed on the merits of his claim.
Because the district court did not abuse its discretion, we affirm.
I. FACTS
A. HARRY PALMER & THE AVATAR COURSE
Palmer is an educational psychologist. For many years, he was a member of the
Church of Scientology and aided members of the Church in the exploration of their
consciousness. Palmer left the Church in 1982 and, in 1986, embarked on a personal
regimen of experimental research, seeking to explore the functioning of his own
consciousness. Palmer’s research led him to the conclusion that beliefs are the key
to everything in the universe.
This insight, combined with Palmer’s background in educational psychology,
led Palmer to develop an educational course in which students might explore their
own consciousness. He calls his course Avatar, from a word for incarnated deities,
and it is premised on the idea that a person’s beliefs create his reality. The Avatar
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Course seeks to inform its students of the existence of these beliefs and to teach them
how to create or “discreate” those beliefs as necessary.
The Avatar Course is taught by trained and licensed “Masters” in three sections.
Section I is a two-day seminar that introduces the Avatar Course using Resurfacing:
Techniques for Exploring Consciousness, a 264-page manual that describes the basis
of exploring the consciousness. Resurfacing is available to the general public.
After completing Section I, students are encouraged to take Sections II and III.
Section II uses The Exercises, a 39-page manual that teaches students to reconnect
with their existence and experience the world directly. The key exercises in Section
II rely on a collection of short sentences designed to allow a student to control his
beliefs. Once a student gains control of his beliefs, he moves on to Section III, The
Procedures. In this section, students learn, through meditation, to become “source,”
or “the seat of consciousness at the center of the universe, creating everything outside
through conscious intent.” (R.2-60-Ex. 11 at 5.) When a person is “at source,” he has
achieved the enlightenment that the Avatar Course offers and is in control of his
reality. Section III is taught with a 77-page manual.
The manuals used in Section II and III are kept confidential. Students must sign
a confidentiality agreement prior to taking the course and must return the materials
when the course ends. Confidentiality ensures both that the course is administered
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with the help of a trained Master and that these sections, which cost $500 and $1500
respectively to attend, maintain their commercial value.
Once Sections II and III are completed, students may take additional sections
to elevate themselves in the Avatar hierarchy. Section IV teaches students to become
Masters, so that they may teach the course to others. Section V is the Wizards Course,
which endows its graduates with the ability to transform civilization.
B. ELDON BRAUN & THE SOURCE COURSE
Braun began the Avatar Course in 1987, after hearing Palmer lecture about it.
Also a former Scientologist, Braun believed that Palmer’s course would teach him
what Scientology did not. He signed up with Palmer, took the Avatar Course, and
became an Avatar Master in 1989. As part of his mastery, he signed a license
agreement and a confidentiality agreement. The confidentiality agreement required
Braun to keep the Avatar Course materials secret and to return the materials upon
request. In 1991, Braun had a disagreement with Palmer over the payment of
royalties. As a result, Braun’s license was suspended, and Star’s Edge asked Braun
to return his Avatar Course materials. Braun did not return the materials.
After his break with Palmer, Braun continued to believe in the power of Avatar
but disliked Palmer’s control of it. With these dual motivations, Braun undertook a
campaign to discredit Palmer and undermine his control of Avatar. As part of his
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effort, Braun published an article on the internet entitled “The Wiz of Orlando.”1 This
article relates both Braun’s involvement with Avatar and Palmer’s control over the
organization. To supplement his journalistic efforts, Braun also sought to develop an
alternative course of self-discovery that would reveal the secrets of the Avatar Course
and draw potential customers away from Palmer.
Braun’s alternative course is called The Source Course. The title is drawn from
the Avatar Course’s ambition of leaving its graduates “at source.” The Source Course
approaches consciousness the same way that the Avatar Course does, and Braun billed
it alternatively as “an analog of the Avatar Course” (R.2-60-Ex.15 at 1), “a refresher”
for the Avatar Course (R.2-60-Ex. 28), “a take-home manual” for graduates of the
Avatar Course (R.2-60-Ex. 21 at 1), and the “equivalent” of the Avatar Course
materials (R.4 at 73). Unlike the Avatar Course materials, whose secrecy is jealously
guarded, The Source Course is intended to be available to the general public, and
Braun even offered it for free to those who could not afford it.
Braun began offering The Source Course to the public on November 9, 2000.
On November 20, Palmer and Star’s Edge sent Braun a letter claiming that The Source
Course infringed their copyright in the Avatar Course materials and demanding that
1
This article is available at http://www.scientology-kills.org/avatarpg1.htm
or http://www.scientology-kills.org/The_Bastard_Child/the_bastard_child.htm.
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Braun cease and desist the infringement. Braun refused, and Palmer and Star’s Edge
filed suit.2
Though it filed suit in December 2000, Palmer and Star’s Edge did not move
for a preliminary injunction until March 9, 2001. They asked for a preliminary
injunction on the basis of their claims for libel, unfair competition, and trademark and
copyright infringement. Because of scheduling conflicts, the district court did not
hold a hearing on the motion until June 28, 2001.
At the hearing, Palmer and Star’s Edge argued for the injunction only on the
basis of their unfair competition claim and their copyright and trademark infringement
claims. The district court denied the request for a preliminary injunction on the
copyright-infringement claim. It found that The Source Course was not substantially
similar to the Avatar Course materials and that Palmer was thus unlikely to succeed
on his copyright-infringement claim. On appeal, Palmer and Star’s Edge ask us to
review this ruling on the copyright-infringement claim. We enjoined publication of
The Source Course pending this appeal.
II. ISSUE ON APPEAL & STANDARD OF REVIEW
2
Palmer and Star’s Edge assert eight claims for relief, including copyright
infringement, infringement of the Avatar trademark, false representation, false
designation of origin, and unfair competition under the Lanham Act, breach of a
contractual covenant not to disclose, misappropriation of confidential information,
interference with a business relationship, libel per se, and libel per quod.
6
The only issue on this appeal is whether the district court erred by failing to
preliminarily enjoin Braun’s publication of The Source Course. The grant or denial
of a preliminary injunction is within the sound discretion of the district court and will
not be disturbed absent a clear abuse of discretion. See Siegel v. Lepore, 234 F.3d
1163, 1178 (11th Cir. 2000) (en banc); Cafe 207, Inc. v. St. Johns County, 989 F.2d
1136, 1137 (11th Cir. 1993); Revette v. Int’l Ass’n of Bridge, Structural &
Ornamental Iron Workers, 740 F.2d 892, 893 (11th Cir. 1984).
III. DISCUSSION
Palmer is not entitled to a preliminary injunction unless he establishes each of
the following four prerequisites: (1) a substantial likelihood of success on the merits;
(2) a substantial threat of irreparable injury; (3) that the threatened injury to the
plaintiff outweighs the potential harm to the defendant; and (4) that the injunction will
not disserve the public interest. See Suntrust Bank v. Houghton Mifflin Co., 268 F.3d
1257, 1265 (11th Cir. 2001). The district court found that Palmer did not establish a
substantial likelihood of success on the merits of his copyright claim and, without
considering the remaining prerequisites, denied the request for a preliminary
injunction. Palmer contends that he did, in fact, show a substantial likelihood of
success on his copyright-infringement claim.
A. PRIMA-FACIE COPYRIGHT INFRINGEMENT
7
To establish a prima-facie case of copyright infringement, Palmer must show
(1) that he owns a valid copyright in the Avatar Course materials and (2) that Braun
copied original elements of the Avatar Course materials in The Source Course. See
Suntrust Bank, 268 F.3d at 1265-66. Palmer submitted copyright registration
certificates to the district court, and Braun does not dispute the validity of Palmer’s
copyright. Palmer, then, owns a valid copyright, satisfying step one.
To satisfy step two, Palmer must first show that The Source Course is
“substantially similar” to the Avatar Course. Two works are substantially similar if
“an average lay observer would recognize the alleged copy as having been
appropriated from the copyrighted work.” Leigh v. Warner Bros., 212 F.3d 1210,
1214 (11th Cir. 2000) (quoting Original Appalachian Artworks, Inc. v. Toy Loft, Inc.,
684 F.2d 821, 829 (11th Cir. 1982)). Both literal and nonliteral similarities can
warrant a finding of substantial similarity. See Bateman v. Mnemonics, Inc., 79 F.3d
1532, 1543-44 n.25 (11th Cir. 1996).
Literal similarity is the verbatim copying of a copyrighted work. In many cases,
an allegedly infringing work will evince “fragmented literal similarity.” See generally
4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.03[A][2] (2001).
In other words, the work may copy only a small part of the copyrighted work but do
8
so word-for-word. If this fragmented copy is important to the copyrighted work, and
of sufficient quantity, then it may support a finding of substantial similarity.
Nonliteral similarity is more difficult to define. A work may be deemed
substantially similar to another work when it evinces what Nimmer calls
“comprehensive nonliteral similarity.” See generally 4 Nimmer & Nimmer, supra,
§ 13.03[A][1]; Bateman, 79 F.3d at 1543 n.25. This comprehensive nonliteral
similarity is evident where “the fundamental essence or structure of one work is
duplicated in another.” 4 Nimmer & Nimmer, supra, § 13.03[A][1], at 13-29.
Even if Palmer successfully shows substantial similarity, he must also
demonstrate that The Source Course borrowed “original elements” of the Avatar
Course materials. “Original elements” include only original expression, since
copyright protection does not extend to ideas, procedures, processes, or systems,
regardless of their originality. See 17 U.S.C. § 102(b) (1996); Suntrust Bank, 268
F.3d at 1266; Leigh, 212 F.3d at 1214. Even original expression will be unprotected
if it can be accurately characterized as an idea, procedure, process, or system. See
Warren Publ’g, Inc. v. Microdos Data Corp., 115 F.3d 1509, 1514 n.13 (11th Cir.
1997) (en banc). But, in many cases, the line between idea and expression is difficult
to draw: “Decisions must therefore inevitably be ad hoc.” Peter Pan Fabrics, Inc. v.
Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960). Moreover, in certain cases,
9
there are so few ways of expressing an idea that the idea and its expression merge.
Under the so-called “merger doctrine,” these few expressions do not receive copyright
protection, since protection of the expressions would thus extend protection to the idea
itself. See Warren Publ’g, 115 F.3d at 1518 n.27.
Palmer contends that The Source Course is substantially similar to the Avatar
Course and that the district court’s contrary determination was in error. Braun argues
that, for the most part, he copied only Palmer’s ideas and exercises, not his expression.
He also asserts that, in the few instances where he did copy Palmer’s expression, the
simple phrases he copied are covered by the merger doctrine. Therefore, according
to Braun, while the works may be substantially similar, Palmer’s copyright did not
protect the portions of the Avatar Course materials that Braun copied. We consider
each contention in turn.
B. THE AVATAR COURSE MATERIALS & THE SOURCE COURSE
A comparison of the works involved in this case shows that The Source Course
is not an exact replica of the Avatar Course materials. But, at the preliminary
injunction hearing, Palmer presented a chart to the court indicating obvious
similarities between the works. We must evaluate these similarities to determine
whether an average lay observer would recognize that The Source Course was
appropriated from the Avatar Course materials.
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The animating idea behind the Avatar Course is that people’s beliefs can alter
how they experience and understand their lives. This idea is not new; as the district
court pointed out, it has been “pondered, discussed, expounded upon, and written
about since time immemorial.” (R.3-68 at 15.) Even if the idea were new, it could
not, of course, be protected by copyright. So, while it is clear that The Source Course
is motivated by Palmer’s idea, the question is whether The Source Course expresses
this idea in a way that infringes on original expression of the same idea in the Avatar
Course materials.
The Avatar Course transforms the idea into a series of exercises that allow a
person, not only to understand the idea intellectually, but to make practical use of the
idea. The structure of the Avatar Course, and the exercises associated with it, are
repeated, with only slight variations, in The Source Course.
1. Section II
Section II of the Avatar Course teaches students “to reconnect with an
experiential awareness of your own existence” through a series of exercises. (R.4-Ex.
35 at ii.) In the final exercises of this section, students are taught to “assume control”
of their beliefs. (R.4-Ex. 35 at 32 & 35.) Students begin the exercise by stating out
loud a short phrase from one of two lists in the materials, thirty-one phrases in all.
They are instructed to recognize any associations that arise in their minds as they say
11
the phrase. For instance, a student might say, from the list, “I have everything I need,”
and then recognize exceptions that pop into his head, such as “except for a new pair
of shoes.” The student is then taught to repeat, exaggerate, and eliminate this
association. A student demonstrates control, and thus completes the exercise, when
he can say all of the phrases on the two lists without any associations. The student is
then invited to create his own phrases and eliminate any associations he may have
with them.
The Source Course, whose Section II is entitled “Experiencing Reality,” closes
with a similar exercise. (R.4-Ex. 37 at 33.) A student is told to state out loud a short
phrase from one of three lists, thirty-four phrases in all. If any associations arise, the
student is told to repeat, exaggerate, and eliminate them. The exercise is complete
when the student can say all of the phrases on the list without associations. Once he
has completed the exercise, the student is invited to create his own phrases.
These exercises are themselves similar, but the most damning similarity is
evident from a comparison of the suggested phrases. In his list, Braun uses many of
the phrases that Palmer uses:
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The Avatar Course The Source Course
I am happy to be me. I’m happy being who I am.
I am right here. I am right here.
I am me. I am just me.
I am source. I’m the source of it all.
I don’t know where I am. I don’t know where I am.
I feel like a victim. I feel like a victim.
I am not a victim. I am not a victim.
The past doesn’t exist. My past doesn’t exist.
Everything I see is illusion. Everything I see is illusion.
What I see is real. Everything I see is real.
I create what I experience. I own what I experience.
I have everything I need. I have what I need.
My mind is still. My mind is quiet.
I am relaxed. I am relaxed.
I create it all. I create everything.
(R.4-Ex. 35 at 34 & 37.) (R.4-Ex. 37 at 34.)
Out of the thirty-plus phrases chosen for each of these exercises, fifteen of the phrases
are identical or almost identical.
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2. Section III
Both works exhibit similarity in their third sections as well. Section III of the
Avatar Course teaches students “a simple and effective technique for managing
beliefs” called the “Creation Handling Procedure” (“CHP”). (R.4-Ex. 36 at ii.) The
CHP allows students to dissolve unwanted thought forms in six easy steps. Section
III of The Source Course, entitled “Changing Your Own Reality,” teaches the
“Thought Dissolving Process” (“TDP”). (R.4-Ex. 37 at 37-51.) While the TDP takes
a lengthy eight steps to achieve the same results, the process is the same and is
described in similar words. For instance, step one in the Creation Handling Procedure
asks students to “[i]dentify with and experience” the thought form by “merg[ing] with
[it] and feel[ing] how it feels.” (R.4-Ex. 36 at 4.) In the Thought Dissolving Process,
step one asks students to “[g]rok” the thought form. (R.4-Ex. 37 at 42.) “Grok” is a
verb drawn from Robert Heinlich’s Stranger in a Strange Land and is defined in the
Oxford English Dictionary as “[t]o understand intuitively or by empathy, to establish
rapport with.” 6 Oxford English Dictionary 864 (2d ed. 1989).
The remaining steps in these processes are also explained in similar language.
Step two in CHP asks students to “[d]efine the outermost limits” of the thought form
(R.4-Ex. 36 at 4); TDP instructs students to “[e]xpand to its outer edges” (R.4-Ex. 37
at 42). CHP’s step three is “[l]abel it without judgment” (R.4-Ex. 36 at 5); TDP’s is
14
“[o]bserve it without filters” (R.4-Ex. 37 at 43). In step four of CHP, students are told
to “[d]isassociate from the creation” by saying, “This is not-I. This is my creation.”
(R.4-Ex. 36 at 6); TDP student’s are told in step four to “[s]ay to yourself, ‘This isn’t
me. It’s something I created.’” (R.4-Ex. 37 at 43). Step five of CHP tells students to
“[d]iscreate the creation” by halting “an existing flow of energy” as one would “turn
off a light at the switch” (R.4-Ex. 36 at 6); step five of TDP tells students to “[d]ecide
to drop it, or let it dissolve” by “switch[ing] off its energizing force” (R.4-Ex. 37 at
43). CHP, in step six, asks students to “[c]reate what you prefer” and use CHP to
eliminate any unwanted associations in the new creation. (R.4-Ex. 36 at 6.) TDP tells
students, in step seven, to “[d]ecide what, if anything, to put in its place” and, in step
eight, to “[s]ee if any ‘Yeah, buts’ arise.” (R.4-Ex. 37 at 43.) If “Yeah, buts,” or
unwanted associations, do arise, TDP instructs students to “use the TDP on them
individually” (R.4-Ex. 37 at 43).
While both works suggest that this procedure may be used on any and all
beliefs, they both instruct students to focus the procedure on similar beliefs. Section
III of the Avatar Course materials first directs students to focus on thoughts about
their bodies. It then focuses on beliefs about limitations, identities, and persistent
beliefs. For really persistent beliefs, the CHP teaches students to acknowledge that
15
“It’s all right to feel like this.” (R.4-Ex. 36 at 66.) Finally, students are directed
toward an understanding of the “collective consciousness” (R.4-Ex. 36 at 67-69).
The Source Course takes its students on a similar journey. It focuses the TDP
on the body, then on identities, then on doubts, and finally on persistent beliefs. When
confronted with really persistent beliefs, students are told to affirm that “It’s OK to
feel the way I do.” (R.4-Ex. 37 at 50.) The Source Course then suggests that the TDP
be used on others’ consciousness.
And the similarities do not end there. Throughout The Source Course, Braun
discusses Palmer’s ideas and exercises in similar terms. Where Palmer calls identities
“suits of clothes” (R.4-Ex. 4 at 116), Braun calls them “disguises” (R.4-Ex. 37 at 15).
When Palmer asks students to “[s]elect a quiet, comfortable space” for meditation on
body image (R.4-Ex. 36 at 30), Braun directs them to “[j]ust lie down comfortably in
a pleasant place where you won’t be interrupted” (R.4-Ex. 37 at 45). Palmer calls
persistent beliefs “core creations” (R.4-Ex. 36 at 60); Braun calls them “core issues”
(R.4-Ex. 37 at 50).
C. COPYRIGHT INFRINGEMENT?
Contrary to the district court’s finding, there are substantial similarities between
the Avatar Course and The Source Course, both literal and nonliteral. But similarity
16
is not enough. Palmer must also show that these similarities infringed upon his
copyrightable expression.
The first type of identifiable similarity is of the nonliteral variety. Braun
organizes The Source Course in three sections. In Section I, he introduces the same
idea of consciousness that Palmer introduces in Section I of the Avatar Course. He
then, in Section II, translates this idea into exercises, and the exercises Braun chooses
are the same exercises that Palmer describes in Section II of the Avatar Course. Once
the student achieves the proper results, the same results that Palmer’s students
achieve, Braun then moves them along to Section III. In Section III, Braun’s students
learn a meditation technique that is identical to the meditation technique described in
Section III of the Avatar Course. To describe the meditation process, Braun uses
labels and descriptions that are similar to Palmer’s labels and descriptions. Once this
technique is mastered, Braun instructs his students to focus the technique on areas of
their life that are identical to the areas that Palmer suggests to his students.
Braun’s exercises are virtually identical to Palmer’s exercises, and a layman
might conclude that The Source Course was appropriated from the Avatar Course.
However, Braun’s appropriation is actionable only if he copied Palmer’s expression,
not his ideas, procedures, processes, and systems. See 17 U.S.C. § 102(b) (1996).
Palmer’s exercises, while undoubtedly the product of much time and effort, are, at
17
bottom, simply a process for achieving increased consciousness. Such processes, even
if original, cannot be protected by copyright.
But Palmer’s expression is protected by copyright. On occasion, Braun’s
descriptions of the exercises come dangerously close to Palmer’s descriptions of the
exercises. These descriptions might be accurately characterized as processes, but they
might not, and Palmer may ultimately show that, by paraphrasing these descriptions,
Braun infringed on protected expression. In this case, as in many copyright cases, the
line between process and expression is not easily drawn, and this difficult issue must
be resolved on the totality of the facts.
The examples of literal similarity also present some thorny issues. Braun
copied fifteen sentences from the Avatar Course materials. The district court found
that these fifteen sentences represent de minimis infringement. But, while fifteen
sentences is only a fraction of the number of sentences in Braun’s 53-page work, these
sentences must be viewed in context. Braun uses these sentences as part of the same
exercise for which Palmer uses them. The Source Course introduces this exercise in
the same part of the course as the Avatar Course. In both courses, students learn, by
concentrating on these particular sentences, how to control their beliefs. The
completion of this exercise allows students to move on to the meditation exercise in
Section III, which, in both courses, is the penultimate exercise before enlightenment.
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Braun does not inadvertently sprinkle his work with Palmer’s sentences; instead, he
uses the same sentences in the same exercise as Palmer and intends to achieve the
same results with them. This use is not de minimis.
However, Braun argues that these sentences are so simple in structure and
content that they are covered by the merger doctrine. On their face, these sentences,
taken individually, seem to be of the type embraced by the merger doctrine. But we
must bear in mind that these phrases are part of an exercise whose ostensible purpose
is to teach mental control. The purpose of the exercise might be served by any
phrases, regardless of their content. In such a case, Palmer’s selection of certain
sentences may be protected by copyright, even though the sentences themselves are
covered by the merger doctrine.3 While the district court did not discuss the merger
issue, we believe that it raises difficult questions that must be addressed.
While the district court erred by finding that The Source Course is not similar
to the Avatar Course, this case presents other difficult questions, regarding the idea-
expression dichotomy and the merger doctrine, that may ultimately prevent Palmer
from succeeding on his copyright-infringement claim. We express no opinion on how
3
For instance, there may be only one way to express the idea of a particular
color or number of fish. But when those ideas are arranged in a particular
order—such as “one fish, two fish, red fish, blue fish”—the expression is no longer
covered by the merger doctrine.
19
these issues will finally be resolved. See Cafe 207, Inc. v. St. Johns County, 989 F.2d
1136, 1137 (11th Cir. 1993). We hold only that the district court did not abuse its
discretion by denying a preliminary injunction on the basis that Palmer did not show
a substantial likelihood of success on the merits of his claim.
IV. CONCLUSION
The district court did not abuse its discretion by concluding that Palmer was
unlikely to succeed on the merits of his copyright-infringement claim. Therefore, the
district court’s denial of Palmer’s request for a preliminary injunction is affirmed.
AFFIRMED.4
4
We issued an injunction pending appeal. That injunction will be lifted
when the mandate issues in this case.
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