Copyright Protection for Medical Forms
All medical forms are not amenable to protection under the copyright laws. As a result, some blank medical forms, on which a business venture may have been started, can be copied without liability for copyright infringement.
Blank medical forms that convey no information to treating physicians, and which do nothing more than describe the correct way to take a patient?s medical history, are not copyrightable. To be copyrightable, blank forms must convey information or contain original pictorial expression. The test to determine whether a form conveys information is whether the selection of information requested by the forms or its arrangement is informative or out of the ordinary.
In Utopia Provider Systems, Inc. v. Pro-Med Clinical Systems, LLC, 596 F.3d 1313 (11th Cir. 2010), the issue arose as to whether a system of medical form templates for use in hospital emergency departments was copyrightable.
Utopia Provider Systems, Inc. was formed by an emergency room physician, and a healthcare administrator who created 56 templates to capture a physician-patient encounter. The templates act as an integrated system for efficiently documenting a patient?s symptoms and the physician?s conclusions and direction to the patient. The forms consist of blocks for recording patient information, including:
- Personal data such as name, date of birth, and chief complaint
- Information on the present illness, such as how long the symptoms have been present, the quality of the pain, etc.
- Review of systems
- Information about the patient?s medical and social history
- Information to be input as part of the actual exam done for the problem presented and the decisions made by the physician and
- Information to be input for clinical impressions, consultations with other doctors, and discharge instructions
Utopia granted Pro-Med an exclusive license to market and sell Utopia?s medical form templates to hospitals. After the license expired, Pro-Med continued to sell software derived from Utopia?s medical forms and in which Utopia?s medical forms were reproduced. Utopia sued Pro-Med for copyright infringement. The district court awarded Pro-Med?s motion for summary judgment on Utopia?s copyright infringement claim on the basis that Utopia?s medical form templates were not entitled to copyright protection. Utopia appealed to the Eleventh Circuit Court of Appeals.
The Eleventh Circuit affirmed the district court decision dismissing the copyright infringement claim. In doing so, the court recognized that ?it is well-established that blank forms which do not convey information or contain original pictorial expression are not copyrightable.? Utopia Provider Systems, Inc. v. Pro-Med Clinical Systems, LLC, 596 F.3d 1313, 1320 (11th Cir. 2010). The court refused, however, to adopt a bright-line rule adopted by some of the other circuits, including the Ninth Circuit, that blank forms inherently do not convey information and are not copyrightable.
In seeking to determine whether Utopia?s medical forms convey information, the court looked to instruction from the Second Circuit, which explained that:
blank forms do not convey information if the headings [are] so obvious that their selection cannot be said to satisfy even minimal creativity . . . Such a work conveys no information, not just because it contains blanks, but because its selection of headings is totally uninformative.
Kregos v. Associated Press, 937 F.2d 700, 708-09 (2d Cir. 1991). The Second Circuit offered examples of works with obvious headings versus works with headings that convey information. A baseball scorecard with columns headed ?innings? and lines headed ?players? and a travel diary with headings for ?cities,? ?hotels,? and ?restaurants? would fall into the former category; books intended to record the events of a baby?s first year or a European trip, depending on the suggestions of items to record and their arrangement, could fall into the latter. Id. at 709.
Following the Second Circuit?s reasoning, the court looked to whether Utopia?s selection of information requested by its forms or its arrangement is informative or out of the ordinary to determine whether the forms are copyrightable. The court examined:
- wether the headings are anything other than what would be expected on such a medical template
- whether the terms actually convey information to the treating physician and
- whether the headings actually conveyed information to treating physicians
Characterizing the forms as ?a means for capturing and retaining information,? the court was unconvinced that the selection or arrangement of terms in Utopia?s forms is original or conveys information.
While blank medical forms are not necessarily precluded from copyright protection, the forms must either convey information or contain original headings or subcategories beyond that which would be expected on medical templates to be protected under United States copyright law.
Steptoe & Johnson PLLC
Chief Marketing Officer