United States District Court, D. Nebraska
CY WAKEMAN, INC., an Iowa corporation, Individually and as Assignee of John Wiley & Sons, Inc., Plaintiff,
NICOLE PRICE CONSULTING, LLC d/b/a LIVELY PARADOX, a Missouri limited liability company and NICOLE D. PRICE, Defendants.
MEMORANDUM AND ORDER
M. Gerrard, United States District Judge.
primary opponents in this case are Cy Wakeman, founder of
plaintiff Cy Wakeman, Inc. (collectively, Wakeman), and
Nicole Price, who is a defendant along with her eponymous LLC
(collectively, Price). Wakeman accuses Price of, among other
things, violating copyrights held by Wakeman and
misappropriating Wakeman's trade secrets. Filing 1 at
seeks to preliminarily enjoin Price from that alleged
conduct. See filing 26. The parties have presented
evidence, and the Court has conducted an evidentiary hearing
at which Wakeman and Price both testified. On the evidence
presented, the Court finds that Wakeman has failed to show
the necessary likelihood of success on the merits of her
claims, and failed to demonstrate that she has been-or will
be-irreparably harmed in the absence of a preliminary
injunction. So, Wakeman's motion (filing 26) will be
is in the business of providing business training and
coaching services, with speeches and seminars on business
leadership and employee advancement. Filing 28-2 at 1.
Wakeman's programs are primarily based on a concept she
calls "Reality-Based Leadership." Filing 28-2 at 1.
Wakeman is also the author of two books based on that
concept: Reality-Based Leadership, published in
2010, and The Reality-Based Rules of the Workplace,
published in 2013. Those books, according to Wakeman, have
combined sales of approximately 46, 000 copies. Filing 55 at
worked for Wakeman from 2012 until 2016. Filing 28-2 at 1.
Price was one of Wakeman's featured speakers, and also
assisted in the development of new programs, including a
presentation on "Reality-Based Diversity and Inclusion
in the Workplace." Filing 28-2 at 1; see filing
28-9. Wakeman terminated Price's employment in 2016;
according to Wakeman, she fired Price after she found out
about Price's intent to launch a competing business.
Filing 28-2 at 2. After her termination, Price started her
own consulting business. Filing 34-1 at 1. And she published
her own book, Lively Paradox, which she says has
sold about 200 copies. Filing 34-1 at 2.
sued Price, alleging in relevant part that Lively
Paradox infringed on Wakeman's copyrights in
Reality-Based Leadership, The Reality-Based
Rules of the Workplace, and the text and images of the
PowerPoint presentation associated with "Reality-Based
Diversity and Inclusion in the Workplace." Filing 1 at
2-7. Wakeman also alleges that Price has misappropriated
Wakeman's trade secrets by publicly revealing some of
Wakeman's confidential clients. Filing 1 at 7. Wakeman
asks for a preliminary injunction "with regard to the
sales, distribution and use of copyrighted materials and
references to confidential Wakeman clients on [Price's]
real and virtual materials." Filing 26 at 2.
deciding whether to issue a preliminary injunction, the Court
weighs the four Dataphase factors: (1) the threat of
irreparable harm to the movant; (2) the state of the balance
between this harm and the injury that granting the injunction
will inflict on other parties; (3) the probability that the
movant will succeed on the merits; and (4) the public
interest. Johnson v. Minneapolis Park & Recreation
Bd., 729 F.3d 1094, 1098 (8th Cir. 2013); (citing
Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d
109, 114 (8th Cir. 1981) (en banc)). A preliminary injunction
is an extraordinary remedy, and the movant bears the burden
of establishing its propriety. Roudachevski v. All-Am.
Care Centers, Inc., 648 F.3d 701, 705 (8th Cir. 2011);
see also Winter v. Natural Res. Def. Council, Inc.,
555 U.S. 7, 20 (2008).
noted above, Wakeman claims that Price's Lively
Paradox infringes on Wakeman's own copyrighted
Likelihood of Success on the Merits
Court begins by assessing Wakeman's likelihood of success
on the merits of her copyright claim, because in deciding
whether to grant a preliminary injunction, likelihood of
success on the merits is the most significant factor.
Laclede Gas Co. v. St. Charles Cnty., 713 F.3d 413,
419-20 (8th Cir. 2013). A party seeking injunctive relief
need not necessarily show a greater than 50 percent
likelihood that it will prevail on the merits. Planned
Parenthood Minnesota, North Dakota, South Dakota v.
Rounds, 530 F.3d 724, 731 (8th Cir. 2008). But the
absence of a likelihood of success on the merits strongly
suggests that preliminary injunctive relief should be denied.
Barrett v. Claycomb, 705 F.3d 315, 320 (8th Cir.
elements of copyright infringement are (1) ownership of a
valid copyright and (2) copying original elements of the
copyrighted work. Warner Bros. Entm't v. X One X
Prods., 644 F.3d 584, 595 (8th Cir. 2011). Copying can
be shown either by (1) direct evidence, or (2) access to the
copyrighted material and substantial similarity between the
copyrighted work and the allegedly infringing work.
Id. There is no direct evidence of copying
here. So, the question is whether the works are
of substantial similarity involves a two-step analysis.
Rottlund, 452 F.3d at 731. There must be substantial
similarity both of ideas and of expression. Id.
Similarity of ideas is evaluated extrinsically, focusing on
objective similarities in the details of the works.
Id. If the ideas are substantially similar, then
similarity of expression is evaluated using an intrinsic test
depending on the response of the ordinary, reasonable person
to the forms of expression. Id. In other words, the
Court must first consider whether the general idea of the
works is objectively similar (the "extrinsic"
portion of the test) and then determine whether there is
similarity of expression (the "intrinsic" portion
of the test). See Taylor Corp. v. Four Seasons
Greetings, LLC, 315 F.3d 1039, 1043 (8th Cir.
2003). Wakeman has not shown a likelihood of
success on the merits of either step of that analysis.
Wakeman points to several parts of Lively Paradox
that, she says, represent content taken "nearly
verbatim" from her copyrighted works. Filing 27 at 5-14.
She argues that "Lively Paradox violates the
'extrinsic test' by objectively stealing the
expression, organization and application of certain ideas
from Wakeman-copyrighted works." Filing 35 at 3. But the
extrinsic test requires more than that: "[t]he extrinsic
inquiry is an objective one, looking to specific and external
criteria of substantial similarity between the original
elements (and only the original elements) of a protected work
and an alleged copy." Copeland v. Bieber, 789
F.3d 484, 489 (4th Cir. 2015) (quotations omitted). Wakeman
has done little to categorically identify such external
criteria here. Compare filing 35 at 3 with,
e.g., Swirsky v. Carey, 376 F.3d 841, 845-49
(9th Cir. 2004).
because it is focused only on the original elements of the
copyrighted work, a court examining extrinsic similarity must
first engage in "analytic dissection, " separating
out those parts of the work that are original and protected
from those that are not. Id.; see Three Boys
Music Corp. v. Bolton, 212 F.3d 477, 485 (9th Cir.
2000); Herzog v. Castle Rock Entm't, 193 F.3d
1241, 1257 (11th Cir. 1999). In other words, extrinsic
similarity cannot be shown by cherry-picking common ideas
between the works-at least, not without considering whether
those common ideas are original, copyrightable elements of