872 F.2d 907 (9th Cir. 1989), 88-2491, Narell v. Freeman

Docket Nº:88-2491.
Citation:872 F.2d 907
Party Name:Irena NARELL, Plaintiff-Appellant, v. Cynthia FREEMAN, aka Bea Fineberg, G.P. Putnam's Sons, Berkeley Publishing Corp., Defendants-Appellees.
Case Date:April 17, 1989
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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872 F.2d 907 (9th Cir. 1989)

Irena NARELL, Plaintiff-Appellant,

v.

Cynthia FREEMAN, aka Bea Fineberg, G.P. Putnam's Sons,

Berkeley Publishing Corp., Defendants-Appellees.

No. 88-2491.

United States Court of Appeals, Ninth Circuit

April 17, 1989

Argued and Submitted Jan. 9, 1989.

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Daniel H. Bookin, Farella, Braun & Martel, San Francisco, Cal., for Irena Narell, plaintiff-appellant.

Charles D. Chalmers, Feldman, Waldman & Kline, San Francisco, Cal., for Cynthia Freeman.

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Jessica Pers, D. Christopher Kerby, Stephen Bomse, Heller, Ehrman, White & McAuliffe, San Francisco, Cal., for G.P. Putnam's Sons and Berkeley Pub. Corp., defendants-appellees.

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

Before SKOPIL, FARRIS and HALL, Circuit Judges.

FARRIS, Circuit Judge:

Irena Narell appeals the district court's grant of summary judgment to Cynthia Freeman, G.P. Putnam's Sons, and Berkeley Publishing in this copyright infringement action. Narell claims that in writing Illusions of Love, Freeman copied substantial portions of Narell's Our City: The Jews of San Francisco. We affirm the grant of summary judgment.

BACKGROUND

Our City: The Jews of San Francisco, written by Narell, was published in 1981 by Howell-North Books, a wholly-owned subsidiary of Oak Tree Publications. The book details the movement of Jewish immigrants from Europe to California, the creation and development of businesses, involvement in civic and cultural affairs, and family histories and social events. As described in its inside book flap: "Our City is both a stunning social history and penetrating mass biography of the Jewish families who since gold-rush days have left their mark on virtually every facet of Bay Area life [and] is the product of prodigious scholarship...." The large, well-illustrated, annotated book is written in an anecdotal, narrative style, and carries a cover price of $25. In 1986, Narell repurchased the rights to the book and the remaining inventory, about 2,200 copies of the initial 1981 printing. Less than 5,000 copies of the book have been sold or distributed to date.

Illusions of Love, written by Freeman, was published by G.P. Putnam's Sons in hardcover in 1984 (now out of print) and by Berkeley Publishing in paperback in 1986. The book has sold approximately one million copies in a variety of locales from bookstores to supermarkets. It is rack-sized and carries a cover price of $4.95. The book tells the fictional story of the conflict experienced by the heir of a large, wealthy Jewish family. He must choose between his obligations to his wife and family and his passion for a rediscovered former lover from a vastly different background. As described on its book flap:

Sweeping from lavish San Francisco mansions to the devastated villages of war-torn Italy to the swank clubs and glittering thoroughfares of postwar Manhattan to today, Illusions of Love is the unforgettable story of a romantic triangle that spans a quarter of a century.

Portions of Illusions are based on historical events described in portions of Our City. Freeman admits that she consulted and used Narell's work during her preparation of Illusions.

Narell filed suit in July 1987 alleging violation of the Copyright Act, 17 U.S.C. Secs. 101-810. As the basis for her infringement claim, Narell points to several instances of word-for-word copying and many more instances of paraphrasing. The total copying is estimated to be over 300 words.

On March 18, 1988, the district court granted the defendants' motion for summary judgment on the alternative grounds that (1) the copyright was not infringed because the works are not substantially similar and (2) the use of Narell's material in Illusions is protected by the fair use doctrine.

STANDARD OF REVIEW

We review the district court's grant of summary judgment de novo. Baxter v. MCA, Inc., 812 F.2d 421, 423 (9th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 346 (1987). Although summary judgment is not highly favored on questions of substantial similarity in copyright cases, summary judgment is appropriate if the court can conclude, after viewing the evidence and drawing inferences in a manner most favorable to the non-moving party, that no

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reasonable juror could find substantial similarity of ideas and expression. Frybarger v. International Business Machines Corp., 812 F.2d 525, 528 (9th Cir.1987). We frequently have affirmed summary judgment in favor of copyright defendants on the issue of substantial similarity. Worth v. Selchow & Righter, 827 F.2d 569, 571 (9th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1271, 99 L.Ed.2d 482 (1988) (citing cases). Fair use is a mixed question of law and fact that may be resolved on summary judgment if a reasonable trier of fact could reach only one conclusion. Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1150-51 (9th Cir.1986). We may affirm a judgment on any ground fairly supported by the record. DeNardo v. Murphy, 781 F.2d 1345, 1347 (9th Cir.), cert. denied, 476 U.S. 1111, 106 S.Ct. 1962, 90 L.Ed.2d 648 (1986).

DISCUSSION

To establish a successful copyright infringement claim, Narell must show that she owns the copyright and that Freeman copied protected elements of the work. Baxter, 812 F.2d at 423. Because in most copyright cases direct evidence of copying is not available, a plaintiff may establish copying by showing that the infringer had access to the work and that the two works are substantially similar. Id. Narell's ownership of the copyright and Freeman's access to Narell's work are not in dispute.

  1. Copying

    Narell argues that this is the rare case where direct evidence of copying exists. In response to questioning during a deposition, Freeman admitted consulting Narell's book during her research and taking "language" from it. As Narell's attorney pointed out particular portions of Illusions, he asked Freeman, "did some of the language come from Ms. Narell's book?" Freeman answered "possibly, probably ... undoubtedly, possibly, I don't know ... of course ... some of it, sure ... yes...." Freeman's halting admissions do not resolve the question. Cf. Broderbund Software, Inc. v. Unison World, Inc., 648 F.Supp. 1127, 1135 (N.D.Cal.1986) (finding direct evidence of copying where programmers carried out orders to copy plaintiff's program). The underlying question is whether protected elements of Narell's book were copied. See Roth Greeting Cards v. United Card Co., 429 F.2d 1106, 1109 n. 3 (9th Cir.1970) (non-protected material may be copied with impunity); cf. Broderbund, 648 F.Supp. at 1131-34 (determining that audiovisual displays of computer program are protected by copyright law).

    A finding that a defendant copied a plaintiff's work, without application of a substantial similarity analysis, has been made only when the defendant has engaged in virtual duplication of a plaintiff's entire work. See M. Kramer Mfg. Co. v. Andrews, 783 F.2d 421, 428 (4th Cir.1986) (computer video game); United Telephone Co. of Mo. v. Johnson Publishing Co., 671 F.Supp. 1514, 1521 (W.D.Mo.1987), aff'd, 855 F.2d 604 (8th Cir.1988) (telephone directory); Broderbund, 648 F.Supp. at 1135 (computer program); Koontz v. Jaffarian, 617 F.Supp. 1108, 1113-15 (E.D. Va.1985), aff'd, 787 F.2d 906 (4th Cir.1986) (electrical estimating labor manual); Radji v. Khakbaz, 607 F.Supp. 1296, 1299-1300 (D.D.C.1985) (book excerpts in newspaper); see also Wainwright Securities, Inc. v. Wall St. Transcript Corp., 558 F.2d 91, 95 (2d Cir.1977), cert. denied, 434 U.S. 1014, 98 S.Ct. 730, 54 L.Ed.2d 759 (1978) (abstracts of financial research reports). In those cases, a substantial similarity analysis was unnecessary because the copying of the substance of the entire work was admitted. The infringement issue turned on whether the material copied constituted protected expression. The question here is whether Freeman's admitted takings--several instances of identical phrases and the more numerous paraphrases--were of protected material.

    Copyright law protects only an author's expression. Facts and ideas within a work are not protected. Harper & Row, Publishers v. Nation Enterprises, 471 U.S. 539, 547-48, 105 S.Ct. 2218, 2223-24, 85 L.Ed.2d 588 (1985). Historical facts and

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    theories may be copied, as long as the defendant does not "bodily appropriate" the expression of the plaintiff. Landsberg v. Scrabble Crossword Game Players, Inc., 736 F.2d 485, 489 (9th Cir.1984), cert. denied, 469 U.S. 1037, 105 S.Ct. 513, 83 L.Ed.2d 403 (1984), (quoting Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 980 (2d Cir.), cert. denied, 449 U.S. 841, 101 S.Ct. 121, 66 L.Ed.2d 49 (1980)); see also Worth, 827 F.2d at 573-74 (research not protected). "[T]he scope of copyright in historical accounts is narrow indeed, embracing no more than the author's original expression of particular facts and theories already in the public domain." Hoehling, 618 F.2d at 974.

    Examining Narell's list of copied passages shows that Freeman largely took unprotected factual information from Our City: the reasons for Jewish emigration from nineteenth century Europe to the United States and the hardships of the emigrants' sea crossing; the details of Adolph Sutro's journey from Westphalia via Panama to California; the character of mid-nineteenth century San Francisco streets; and the conduct of religious affairs and social relations within the Jewish community, including the occurrence and guest list of a picnic attended by leading families. Freeman did copy a few phrases from Narell: "rekindle old memories," "staggering network," "river wound its way between muddy banks crawling with alligators," "hordes of gold seekers,"...

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