Palmer v. Braun

• Decision Date: 09 April 2002
• Docket Number: No. 01-14511.,01-14511.
• Citation: 287 F.3d 1325
• Parties: Harry PALMER, Star's Edge, Inc., Plaintiffs-Appellants, v. Eldon BRAUN, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

287 F.3d 1325

Harry PALMER, Star's Edge, Inc., Plaintiffs-Appellants, v. Eldon BRAUN, Defendant-Appellee.

No. 01-14511.

United States Court of Appeals, Eleventh Circuit.

April 9, 2002.

COPYRIGHT MATERIAL OMITTED

Penny R. Phillips, Star's Edge, Inc., Altamonte Springs, FL, Patrick O. Keel, Baker Botts, LLP, Austin, TX, Craig Corbett, Fisher, Rushmer, Werrenrath, Keiner, Wack & Dickson, P.A., Orlando, FL, for Plaintiffs-Appellants.

John M. Merrett, Jacksonville, FL, for Defendant-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before TJOFLAT and COX, Circuit Judges, and HANCOCK,^* District Judge.

COX, Circuit Judge:

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 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 basic 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 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 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 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

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

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 "sub-stantially similar" to the Avatai 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...