Kregos v. Associated Press

• Decision Date: 01 September 1993
• Docket Number: D,No. 619,619
• Citation: 3 F.3d 656
• Parties: 1993 Copr.L.Dec. P 27,142, 27 U.S.P.Q.2d 1881 George L. KREGOS, doing business as American Sports Wire, Plaintiff-Appellant, v. The ASSOCIATED PRESS, Defendant, Sports Feature Syndicate, Inc.; Computer Sports World; Keith Glantz; Russell Culver, Defendants-Appellees. ocket 92-7735.
• Court: U.S. Court of Appeals — Second Circuit

Page 656

3 F.3d 656

1993 Copr.L.Dec. P 27,142, 27 U.S.P.Q.2d 1881

George L. KREGOS, doing business as American Sports Wire Plaintiff-Appellant, v. The ASSOCIATED PRESS, Defendant Sports Feature Syndicate, Inc.; Computer Sports World Keith Glantz; Russell Culver, Defendants-Appellees.

No. 619, Docket 92-7735.

United States Court of Appeals Second Circuit.

Argued Jan. 4, 1993.

Decided Sept. 1, 1993.

Mark P. Stone, Stamford, CT, for plaintiff-appellant.

Nicholas L. Coch, New York City (Shea & Gould, New York City, of counsel), for defendant-appellee Associated Press.

Norman E. Lehrer, Cherry Hill, NJ (Perla M. Kuhn, Kuhn & Muller, New York City, of counsel), for defendants-appellees Sports Feature Syndicate, Computer Sports World, Glantz, and Culver.

Before: PRATT and MAHONEY, Circuit Judges, and ROBERT C. ZAMPANO, District Judge for the United States District Court of Connecticut, sitting by designation.

GEORGE C. PRATT, Circuit Judge:

Plaintiff-appellant George Kregos ("Kregos") appeals from a judgment entered in the United States District Court for the Southern District of New York, Gerard L. Goettel, Judge, that granted defendants' motion for summary judgment and dismissed Kregos's claims of copyright infringement, fraud, and unfair competition. This is the fourth reported opinion in this action. In the first decision the district court concluded that Kregos's pitching forms were not copyrightable. Kregos v. Associated Press, 731 F.Supp. 113 (S.D.N.Y.1990) ("Kregos I "). On appeal, we held that remand was necessary, principally to determine whether Kregos's selection of pitching statistics reflected sufficient originality to be copyrightable as a compilation. Kregos v. Associated Press, 937 F.2d 700 (2d Cir.1991) ("Kregos II "). Kregos now appeals from the district court's post-remand decision, which held that the Kregos and AP pitching forms were not "substantially similar". Kregos v. Associated Press, 795 F.Supp. 1325 (S.D.N.Y.1992) ("Kregos III ").

BACKGROUND

Since the facts of this case are comprehensively reported in Kregos I, we briefly summarize here only those facts relevant and necessary to this appeal. Since 1983 Kregos, doing business as American Sports Wire, has provided a number of newspapers across the country with his selection of statistics on baseball pitchers arranged into what are known in the business as "pitching forms". The forms are of interest to avid fans and gamblers, because by comparing the performances of the pitchers in an upcoming game they provide a basis for predicting the winner. Examples of the forms may be found in the appendices to Judge Goettel's 1990 opinion. Kregos I, 731 F.Supp. at 122-24. In late 1983, Kregos sent to the Associated Press ("AP") a copy of his form, seeking syndication; AP, however, rejected it. In 1984, AP made available to its subscribers for the first time a pitching form created by its own writers ("1984 form"); AP's form was "nearly identical" to the Kregos form. Kregos III, 795 F.Supp. at 1327. An internal AP memo stated that in creating its form, AP writers had consulted "various other forms including the [Kregos] form, but [had] used them only as examples." Id. at 1328.

In 1986, AP revised its pitching form ("1986 form"), making three relevant changes to its earlier 1984 form. See Kregos I, 731 F.Supp. at 115. First, the AP's 1986 form added a new category, "TEAM REC", a category that represented the team's record in games started by the particular pitcher during the current season. Id. Second, while the AP and Kregos forms both contained a category detailing the pitchers' records--wins, losses, innings pitched, and earned-run average--the Kregos form specified this record When Kregos first accused AP of unlawfully using his form in 1984, Kregos III, 795 F.Supp. at 1328, AP lawyers misinformed him that the form was not copyrightable. Kregos conceded that he felt this advice was incorrect, but he waited until June of 1985 to seek copyright protection both for his form and for the computer software he had developed to create it. Id. Kregos's application for copyright registration was not approved until December 1988 due to newly enacted legislation regarding copyright applications for computer-screen displays. Id.

only for games played at the site of the upcoming game, whereas AP's 1986 form presented that information for all games played against that opponent. AP's third change was to include in the "VS OPP" (against this opponent) category only the current season's information, not the career statistics provided by the Kregos and 1984 AP forms. Id.

A. 1990 District Court Opinion: Kregos I.

Kregos commenced this copyright and trademark infringement action in March 1989 against both AP and its supplier of baseball statistics and pitching forms, Sports Features Syndicate, Inc. ("Sports Features"), claiming that both the 1984 and the 1986 pitching forms directly infringed his works. Kregos I, 731 F.Supp. at 116.

Holding that Kregos's pitching form was not copyrightable, the district court granted summary judgment to AP and dismissed Kregos's claims. Judge Goettel additionally held that Kregos's forms were "functional" and thus not protected by trademark laws. Id. at 121-22 (construing Lanham Trademark Act, Sec. 43(a), 15 U.S.C. Sec. 1125(a)). Granting protection to the form itself "would preclude any other supplier from publishing an authentic pitching form." Id. at 121. Further, any curtailing of the right to use the general categories used by Kregos, namely, wins, losses, innings pitched, and earned-run average, would exact a "substantial limitation on competition." Kregos I, 731 F.Supp. at 122.

B. First Appeal: Kregos II.

On appeal, we remanded the case to the district court for further proceedings to determine whether Kregos had displayed enough selectivity to satisfy the requirement that his work be original. Kregos II, 937 F.2d at 710. We held that the validity of Kregos's compilation copyright could not be rejected for lacking, as a matter of law, the requisite originality and creativity. We also held that Kregos's forms did not evince a merger of idea and expression, because the potentially relevant data about pitching were numerous, and there were numerous means of expressing the idea of rating pitchers' performances. We further held that the district court erred in holding the "blank form" doctrine barred copyright in this case, because Kregos's forms, unlike check stubs, or a blank diary, convey information. See Kregos II, 937 F.2d at 708. We affirmed the district court's dismissal of Kregos's claims under Sec. 43(a) of the Lanham Trade-Mark Act, 15 U.S.C. Sec. 1125(a).

C. District Court's Opinion after Remand: Kregos III.

After the remand, the district court permitted Kregos to file an amended complaint. Kregos III, 795 F.Supp. at 1328. In addition to copyright infringement, Kregos asserted claims under New York law for unfair competition and fraud. He also named additional defendants, Computer Sports World, Keith Glantz, and Russell Culver, in claims of contributory infringement.

On defendants' motions, the district court dismissed the amended complaint. Id. at 1337. On the copyright-infringement claims, the court granted summary judgment as to the 1984 form, because the action was time-barred, id. at 1330-31, and, as to the 1986 form, because there was no substantial similarity between Kregos's form and the AP form. Id. at 1334. The court dismissed the common-law fraud claims because Kregos did not establish the requisite elements under New York law. Kregos III, 795 F.Supp. at 1334-35. Finally, the court dismissed the unfair-competition claim, because it was preempted by federal law. Id. at 1336-37.

We affirm.

DISCUSSION

A. The Copyright-Infringement Claims.

The district court on remand granted summary judgment in favor of AP on Kregos's copyright-infringement claims relating to both the 1984 form and 1986 forms. Summary judgment under Fed.R.Civ.P. 56(c) is appropriate only if "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." The moving party has the burden of demonstrating the absence of any material factual dispute, and the court must make all reasonable inferences in favor of the nonmoving party. Heyman v. Commerce & Industry, 524 F.2d 1317, 1320 (2d Cir.1975); Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We review a grant of summary judgment de novo. Healy v. Rich Products Corp., 981 F.2d 68, 72 (2d Cir.1992).

1. The 1984 Form.

A copyright-infringement action requires the copyright owner to prove copying of a copyrighted work by an infringer. See Weissmann v. Freeman, 868 F.2d 1313, 1320 (2d Cir.), cert. denied, 493 U.S. 883, 110 S.Ct. 219, 107 L.Ed.2d 172 (1989). However, such an action must be commenced within three years after the claim accrued. 17 U.S.C. Sec. 507(b); see also Mount v. Book-of-the-Month Club, Inc, 555 F.2d 1108, 1110-11 (2d Cir.1977); Gaste v. Kaiserman, 669 F.Supp. 583, 584 (S.D.N.Y.1987). While AP used its 1984 form until October 1985, Kregos did not initiate suit until March 1989. Thus, Kregos's claim for infringement by the 1984 form was filed at least five months late.

Kregos, however, requested the district court to exercise its equitable discretion to toll the statute of limitations on three grounds--fraudulent inducement, administrative delay, and continuous infringement; the court declined.

a. Fraudulent Inducement.

Kregos stated that when he confronted AP about using his pitching form in 1984, an AP attorney informed him that the form was not copyrightable and that he had no legal claims against AP. Kregos also stated that AP's supplier of forms, Sports Features, fraudulently induced his delay in filing suit by telling him that his lawsuit would injure the health of the mother of the president of Sports Features, and that dropping all legal action would prompt Sports...