831 F.2d 898 (9th Cir. 1987), 86-2584, Aliotti v. R. Dakin & Co.

Docket Nº:86-2584.
Citation:831 F.2d 898
Party Name:4 U.S.P.Q.2d 1869 Shelley ALIOTTI and John Aliotti, Plaintiffs-Appellants, v. R. DAKIN & CO., a California corporation, Defendant-Appellee.
Case Date:November 04, 1987
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 898

831 F.2d 898 (9th Cir. 1987)

4 U.S.P.Q.2d 1869

Shelley ALIOTTI and John Aliotti, Plaintiffs-Appellants,


R. DAKIN & CO., a California corporation, Defendant-Appellee.

No. 86-2584.

United States Court of Appeals, Ninth Circuit

November 4, 1987

Argued and Submitted Oct. 6, 1987.

Page 899

Richard H. Rosenthal, Carmel Valley, Cal., for plaintiffs-appellants.

Daniel J. Furniss, San Francisco, Cal., for defendant-appellee.

Appeal from the United States District Court for the Northern District of California.

Before GOODWIN, ALARCON and LEAVY, Circuit Judges.

GOODWIN, Circuit Judge:

Shelley and John Aliotti appeal an adverse summary judgment in their damage action for copyright infringement and related grievances.

Shelley Aliotti is a designer of craftwork and toys. From 1976 to 1979 she worked on a contract basis for Favorite Things, Inc., a Carmel-based toy manufacturer. She designed soft pillows, stuffed animals, and other items directed toward the children's market. The Aliottis acquired copyrights to items created by them after Favorite Things, Inc. became bankrupt in 1982.

In November 1978, Bernard Friedman, the president of Favorite Things, telephoned Harold Nizamian, the president of appellee R. Dakin Co., to ask him whether Dakin would be interested in acquiring Favorite Things. After this phone conversation, Friedman sent Nizamian a letter and pictures of various products manufactured by Favorite Things. Upon a request from Dakin's board of directors for additional information, Friedman complied and sent Nizamian a presentation booklet, which included data concerning the production and sale of its merchandise. Friedman also sent Dakin a copy of Favorite Things' current sales brochure, which included photographs of three stuffed toy dinosaurs--Brontosaurus, Stegosaurus and Triceratops--which had been designed by Shelley Aliotti and were being marketed as the "Ding-A-Saur" line.

During a March 1979 meeting at Favorite Things' office, Friedman and Aliotti showed two Dakin executives many of Favorite Things' designs, including many products designed by Aliotti. In addition to the three stuffed dinosaurs already marketed by Favorite Things, Aliotti displayed prototypes of three additional Ding-A-Saurs--Tyrannosaurus Rex, Pterodactyl and Woolly Mammoth. The parties did not discuss the possibility that Dakin might purchase any particular design. After the meeting, the Dakin executives told Shelley Aliotti to contact them if she was interested in being considered for employment at Dakin.

Page 900

In April 1979, Dakin's board of directors decided not to acquire Favorite Things. In July or August 1979, Dakin began developing its own line of stuffed toy dinosaurs. Dakin first offered its "Prehistoric Pet" line for sale in its fall catalog, which was released in June 1980. The six stuffed animals offered by Dakin were of the same six species as those presented to Dakin by Aliotti. Although Dakin offered affidavits supporting its claim that its employees independently developed its dinosaur line, for the purposes of summary judgment we assume that Dakin appropriated Aliotti's idea of producing stuffed dinosaur dolls.


I. Copyright Claims

The district court's grant of summary judgment on the copyright claims is subject to de novo review. See Berkic v. Crichton, 761 F.2d 1289, 1292 (9th Cir.), cert. denied, 474 U.S. 826, 106 S.Ct. 85, 88 L.Ed.2d 69 (1985). Although "summary judgment is not highly favored on the substantial similarity issue in copyright cases," id., it is appropriate if "the court concludes that no reasonable jury could find substantial similarity of both ideas and expression between the works at issue." Frybarger v. International Business Machines Corp., 812 F.2d 525, 528 (9th Cir.1987). See Fed.R.Civ.P. 56(c) (allowing summary judgment when "there is no genuine issue as to any material fact").

To prevail on her copyright claims at trial, Aliotti must prove (1) that she owned the copyrights, (2) that Dakin had access to her designs, and (3) that there is "substantial similarity" between her designs and Dakin's stuffed animals. See Berkic, 761 F.2d at 1291; Sid and Marty Krofft Television Productions, Inc. v. McDonald's Corp., 562 F.2d 1157, 1162 (9th Cir.1977). Because there exist genuine issues of material fact on the issues of ownership and access, summary judgment is appropriate on the copyright claims only if no reasonable jury could...

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