Budish v. Gordon

• Decision Date: 04 February 1992
• Docket Number: No. 1:91CV0885.,1:91CV0885.
• Parties: Armond BUDISH, Plaintiff, v. Harley GORDON, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

784 F. Supp. 1320

Armond BUDISH, Plaintiff, v. Harley GORDON, et al., Defendants.

No. 1:91CV0885.

United States District Court, N.D. Ohio, E.D.

February 4, 1992.

COPYRIGHT MATERIAL OMITTED

Kenneth R. Adamo, Jones, Day, Reavis & Pogue, Dennis R. Rose, Mark E. Staib, Hahn, Loeser & Parks, Cleveland, Ohio, for plaintiff, counter-defendant.

Thomas J. Collin, Thomas F. Zych, Sr., Thompson, Hine & Flory, Charles M. Rosenberg, Benesch, Friedlander, Coplan & Aronoff, Cleveland, Ohio, Lee Carl Bromberg, Kerry L. Timbers, Bromberg & Sunstein, Boston, Mass., John J. Sheehan, Jr., Sheehan & Sheehan, Samuel S. Pearlman, Arthur Joseph Tassi, III, Berick, Pearlman & Mills, David A. Schaefer, David W. Neel, Benesch, Friedlander, Coplan & Aronoff, Cleveland, Ohio, for defendants, counter-claimant, cross-defendant, cross-claimant.

MEMORANDUM OPINION

BATCHELDER, Circuit Judge, sitting by designation.

Presently before the Court is the motion of Plaintiff, Armond Budish, for a preliminary injunction. A hearing on Plaintiff's motion for a preliminary injunction was held on September 30 through October 2, 1991, and was concluded on October 9, 1991.

At the outset of the hearing, the Court directed the parties to focus on the Tables in the books at issue here. Therefore, the Findings of Fact and Conclusions of Law set forth below reflect that emphasis.

I. FINDINGS OF FACT

A. Introduction and Procedural Background

1. This is a copyright infringement action brought pursuant to Title I of the Copyright Act of 1976, 17 U.S.C. §§ 106, 501(b). Plaintiff, Armond D. Budish, has also brought claims for violation of the Lanham Act, 15 U.S.C. § 1125(a), and Ohio common law.

2. This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331 and § 1338(a).

3. Venue is proper in this district pursuant to 28 U.S.C. §§ 1391, 1400.

4. On May 31, 1991 Defendant Jane Daniel filed a motion to dismiss for lack of personal jurisdiction, and Defendants Daniel, Harley Gordon, and Financial Planning Institute, Inc. (collectively "Defendants"), moved to dismiss certain counts for failure to state a claim.

5. On September 12, 1991, this Court denied Daniel's motion to dismiss for lack of personal jurisdiction, denied the Defendants' motion to dismiss Budish's unfair competition and unfair trade practices, Lanham Act, and unjust enrichment claims, and granted Defendants' motion to dismiss Budish's right of attribution claim. Presently before this Court are Budish's copyright infringement claim, Lanham Act claim, and his state law unfair competition, unfair trade practices, and unjust enrichment claims.

6. Pursuant to this Court's Order of July 31, 1991, this matter was set for a hearing on Budish's Motion for a Preliminary Injunction with respect to Defendants Gordon, Daniel and Financial Planning Institute.

7. The hearing began on September 30, 1991, and concluded on October 9, 1991.

8. Budish offered the testimony of himself and Charles Pixley, and the testimony of Defendants Daniel and Gordon, as adverse witnesses. Budish also offered the deposition testimony of John Perry, who had worked for Defendants in the preparation of one of the allegedly infringing works. The Defendants called Harley Gordon and Alexander Bove, Jr.

B. The Parties

9. Armond Budish is an author, journalist and attorney at law in Cleveland, Ohio 10. Harley Gordon is an attorney at law in Boston, Massachusetts.

11. Jane Daniel is a professional writer in Newton, Massachusetts.

12. Financial Planning Institute, Inc. is a Massachusetts corporation owned solely by Gordon and Daniel.

13. Daniel & Daniel is a business owned by Jane Daniel. Daniel & Daniel is in the business of marketing communications.

14. Budish and Gordon both practice elder law.

15. Elder law is a sub-specialty in the law, which deals with legal issues affecting the elderly.

16. One of the critical issues in the area of elder law is Medicaid Planning. Medicaid Planning is helping individuals to protect their assets from the costs of nursing-home care while using Medicaid to cover those costs.

C. Factual Background

17. Budish is a nationally known expert in the area of Medicaid Planning.

18. Budish is also a journalist. Through his regularly-appearing column "You and the Law," Budish has informed readers of The Plain Dealer, published in Cleveland, Ohio, about their legal rights and responsibilities for almost ten years. Budish is also a contributing Editor to Family Circle Magazine, a national publication, and has written for leading magazines and newspapers around the country for a number of years on various topics.

19. Budish also writes, lectures, and has been interviewed widely both nationally and locally, particularly on the subject of Medicaid Planning. Budish has written on Medicaid Planning and other elder law issues for Family Circle magazine as well as for other national and local publications. Through these activities, Budish has developed and continues to develop a strong national reputation in the elder law field, particularly on the subject of Medicaid Planning.

20. Budish is the author of Avoiding the Medicaid Trap: How to Beat the Catastrophic Cost of Nursing-Home Care ("The Medicaid Trap").¹ The Medicaid Trap was published in August of 1989. A revised and updated version of The Medicaid Trap was published in November of 1990. A paperback version of the revised and updated The Medical Trap was published in August of 1991.

21. As a result of his writing and publishing of The Medicaid Trap, Budish's reputation and legal practice has been expanded.

D. Budish's Creation of The Medicaid Trap

22. In part as a result of his consumer writings, and, in part, due to personal circumstances, Budish became keenly aware of the significant financial problems facing older Americans and their families due to catastrophic nursing-home costs. Budish was aware of the absence of any book on Medicaid Planning which was directed to a national, lay audience.

23. In March 1987, he began work on a book designed to help elderly middle-class Americans and their families cope with these catastrophic nursing-home costs.

24. In writing The Medicaid Trap, Budish, inter alia, creatively selected and arranged the general topics which he felt best presented the problem of paying for nursing-home care and the alternative solutions for that problem. He creatively selected the details and specific topics within his arrangement of general topics, and organized and arranged those materials, created, organized and arranged certain tables, created the examples included in the text, and selected and executed the style and tone of writing, all to create The Medicaid Trap.

25. To make The Medicaid Trap useful and marketable to a national audience of elderly middle-class Americans and their families, it was important that the book contain factual information pertaining to each state's Medicaid rules and regulations because Medicaid, although federally-based, is administered separately by the states, and the states' rules and regulations may differ, one from another.

E. Budish's Creation of Plaintiff's Tables²

26. In the course of his extensive research, Budish discovered a technical report prepared by the National Governors' Association Center for Policy Research entitled Medicaid Eligibility for the Elderly in Need of Long Term Care, written by Edward Neuschler (the "Governors' Report").

27. The Governors' Report is a lengthy, complex, technical 152-page document which sets forth factual information related to the state requirements and guidelines for Medicaid eligibility in 46 tables and charts accompanied by more than 350 footnotes.

28. In creating his Plaintiff's Tables for The Medicaid Trap, Budish selected certain factual information from the Governors' Report and organized that information along with information from other sources into eight original tables. Budish only used the Governors' Report as a source of certain factual information in creating the Plaintiff's Tables.

29. Budish asked for and received the permission of Edward Neuschler to use the factual information in the Governors' Report. (See Plaintiff's Exh. 8).

30. Budish exercised creative efforts in electing to present certain information in the form of tables, and in compiling, organizing, arranging and presenting the certain selected information he found in the Governors' Report, together with other information acquired through his research from other sources, into eight original tables in The Medicaid Trap.³

31. Budish obtained much of the underlying data for Plaintiff's Table 12 from information scattered throughout the Governors' Report and from certain information set forth in six separate tables in that Report (Tables B-7, B-8, B-9, B-10, B-11 and B-12). Budish's creative selection, ordering and arrangement of this information from the Governors' Report in preparing Plaintiff's Table 12 is demonstrated by the following:

(a) Budish selected only eight categories of information to include in Plaintiff's Table 12, from the hundreds of information categories contained in the Governors' Report. The "B" section of the Governors' Report contained seventeen categories of information, nine of which Budish chose not to include in Plaintiff's Table 12. Seventeen categories of information could be organized logically in hundreds of different ways; Budish chose one arrangement from that range of possibilities. The Medicaid Regulations identify fifteen discrete categories of assets which are exempt, 20 C.F.R. § 416.1210. Even fifteen categories present hundreds of different options for an organized and logical selection and arrangement.

(b) Tables B-7 through B-12 in the Governors' Report are difficult for a lay person to understand. Each of the six tables listed the criteria for Supplemental Security Income (SSI) and then utilized three columns comparing states with criteria which are more restrictive, less restrictive, or the

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