A Washington firm specializing in video-based simulation exams for public safety officials has filed suit in a New Jersey federal court for copyright infringement of an examination intended to be used for the New Jersey State Police to evaluate its police officer candidates.
Ergometrics & Applied Personnel Research, Inc. is the owner of copyrights to “FrontLine,” an exam which is said to consist of “54 videotaped police-related scenarios,” which are viewed by police officer candidates who are then asked to quickly answer multiple choice questions about the best way for an officer to handle the scenarios. The defendants in the action are Dr. Jeff Bernstein and a corporation doing business as “Bernstein Test Prep,” which “offers instructional courses and course material intended to prepare candidates to take the NJSP Exam and similar police screening exams nationwide,” according to the complaint filed in the action.
The details regarding the defendants’ access to the materials set forth in the complaint are somewhat unclear. The plaintiff Ergometrics alleges:
On information and belief, Defendants obtained access to the FrontLine video material by breaching and/or inducing other to breach the examination’s confidentiality, by recreating the video scenarios, and/or through other unlawful means.
As in many copyright cases, proof of infringement would require showing not only access but also substantial similarity between FrontLine and the products or other works offered by the defendants. On this score, the plaintiff claims:
20. In October 2014, the New Jersey State Police provided Ergometrics with a copy of the “Bernstein & Associates, Inc.” preparation guide for the NJSP Exam, entitled “State Trooper Entry Exam Review for New Jersey State Police Candidates” (the “Bernstein Guide”). An exam candidate and JBA customer brought this copy of the Bernstein Guide to a session of the August 17, 2014, administration of the NJSP Exam and, when questioned about the document, provided it to an exam proctor.
21. On information and belief, Defendants are responsible for publishing and distributing the Bernstein Guide to its customers, who pay $599 each for Defendant’s NJSP Exam seminar and course material.
22. Upon review of the Bernstein Guide, Ergometrics discovered that the guide misappropriates and discloses proprietary and copyrighted FrontLine material. Without limitation, the Bernstein Guide contains worksheets revealing the content of 43 of the 54 FrontLine video scenarios and the answers thereto.
The question of similarity between the test and test-prep materials raised by the lawsuit calls to mind a seminal copyright case, Educational Testing Services v. Katzman, 793 F.2d 533 (3rd Cir.1986), which also involved claims between the developer of the Scholastic Aptitude Test (SAT) and a test preparation company, Princeton Review, which offered SAT prep materials. In the Katzman case, the plaintiff alleged that the defendants “distributed ‘facsimile’ SATs that contained ‘verbatim or nearly verbatim’ SAT questions.”
The Ergometrics case seems to pose a more difficult question on the issue of similarity, as the plaintiff alleges that the defendants’ Guide “contains worksheets revealing the content of” the FrontLine video scenarios. Thus, it would appear that the two works are not of the same nature: the copyright registration attached to the complaint refers to the nature of FrontLine as a “motion picture,” while the defendants’ Guide would typically be considered a “literary” work.
If Ergometrics’ theory holds in court, one could ponder whether the many online written accounts revealing plot developments in recent episodes of popular television shows–hopefully accompanied by a prominent “SPOILER ALERT” warning–could be considered infringements of the visual arts copyrights which would apply to the show. In any event, it will be intriguing to see how this matter plays out.