We affirm the judgment on the unfair-competition and unjust-enrichment
claims because they are preempted by the Copyright Act. We affirm the judgment
on the deceptive-trade-practices claim because Beck cannot establish that the
alleged deceptive practice significantly impacted the public. As for the copyright
claim, E3 first defends the favorable summary judgment by arguing on appeal (1)
that most of the language at issue in the copyrighted Beck reports is not protected by copyright law because Beck took it from a third-party report that predated
Beck’s copyrighted reports; and (2) that even if the language in Beck’s
copyrighted reports was taken from earlier Beck reports, the language in those
earlier reports was not protected because it had not been copyrighted and had
entered the public domain. We reject these grounds for affirmance because Beck
created genuine disputes of material fact by presenting evidence (1) that Beck did
not take the language in its copyrighted reports from the third-party report relied
upon by E3; and (2) that the copyrighted reports derived their language from
earlier Beck reports and internal documents that were themselves copyrighted by
Beck and whose language had not entered the public domain. E3 also defends the
copyright summary judgment on the ground that the allegedly copied language
cannot be protected by copyright law because it serves functional purposes and
copyright protects only expression, not ideas. The district court apparently relied
in part on this ground in granting summary judgment, but it did so sua sponte; E3
had not argued the point below. Although E3’s argument may be meritorious, we
refrain from so deciding on this appeal, believing that Beck should be afforded
the opportunity to respond to this argument in district court. We therefore reverse
the summary judgment on the copyright claim and remand for further
proceedings.
Beck also contends on appeal that the district court erred in denying its motion under Federal Rule of Civil Procedure 56(f) to permit more discovery before acting on E3’s summary-judgment motion. But because of the grounds for our disposition of the various claims, we need not address the merits of this issue.
