Publications Intern., Ltd. v. Meredith Corp.
| Decision Date | 08 July 1996 |
| Docket Number | 95-3530,Nos. 95-3485,s. 95-3485 |
| Parties | , 1996 Copr.L.Dec. P 27,541, 39 U.S.P.Q.2d 1444 PUBLICATIONS INTERNATIONAL, LIMITED, Plaintiff/Counterdefendant-Appellant, v. MEREDITH CORPORATION, Defendant/Counterplaintiff-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Wayne B. Giampietro (argued), Gregory N. Freerksen, and Sharon M. Goss, Witwer, Burlage, Poltrock & Giampietro, Chicago, IL, for plaintiff-appellant.
Alan S. Cooper, Banner, Birch, McKie & Beckett, Washington, DC, Marc S. Cooperman, Jon O. Nelson, and Laura J. DeMoor, Banner & Alegretti, Chicago, IL, for defendant-appellee.
Before BAUER, KANNE, and ROVNER, Circuit Judges.
This appeal serves up an issue of first impression in this Circuit: whether the copyright laws of the United States afford protection to the constituent recipes contained in a cookbook that enjoys a registered compilation copyright. The district court entered a preliminary injunction after concluding that recipes, which in this case prescribe an assortment of edible derivatives of Dannon yogurt, are protectable under copyright law. Because we find that the recipes involved in this case are not protectable under copyright law, we vacate the entry of the preliminary injunction.
This appeal lies under 28 U.S.C. § 1292(a)(1) from the district court's entry of a preliminary injunction on Meredith Corporation's counterclaim against Publications International, Limited, ("PIL") for copyright infringement. Thus, although there are several causes of action involved in this dispute, we will focus only upon those facts relevant to the alleged infringement and the entry of the injunction. For the purpose of deciding this appeal, we take the underlying facts as found by the district court in its order entering the preliminary injunction.
Both parties publish magazines and books containing cooking recipes, and these publications are often featured for sale on racks adjacent to checkout stations at supermarkets and grocery stores. Central to this appeal is Meredith's DISCOVER DANNON--50 FABULOUS RECIPES WITH YOGURT (1988). On September 13, 1988, Meredith obtained a copyright in DISCOVER DANNON (registration number TX 2-400-591). In section 2 of this copyright registration certificate, Meredith claims protection for a "[c]ollective work," and in section 6 further describes the subject matter as a "[c]ompilation" of "[r]ecipes tested with Dannon yogurt."
This publication announces that "creamy Dannon yogurt" owes its popularity not only to its flavor, but to its versatility as well. To back up this claim, DISCOVER DANNON offers a cornucopia of culinary delights featuring--you guessed it--Dannon yogurt. From "Simple Snacks" to "Dazzling Desserts," "Super Salads" to "Exciting Entrees," the array of offerings is enough to send anyone rushing to the fridge. Some highlights are "Chunky Chili Dip," "Crunchy Tuna Waldorf Salad," "Spicy Bean Tostadas," and for dessert, "Chocolate Fruit Torte." As inspiration, Meredith offers pictorial representations of the final products upon which the yogurt devotee may longingly fixate.
In its motion for the injunction, Meredith alleged that PIL had since 1992 produced twelve publications containing recipes poached from DISCOVER DANNON. Of these twelve publications, two contain by far the highest number of allegedly infringing recipes (twenty-two each, as compared to nine for the third-highest total): DANNON HEALTHY HABIT COOKBOOK--GREAT-TASTING RECIPES LOWER IN FAT AND CALORIES (1993), and TASTE WHY IT'S DANNON--COLLECTION OF GREAT-TASTING RECIPES (1995). 1 These cookbooks echo Meredith's celebration of Dannon yogurt as a nutritional bonanza for anyone immersed in today's health-conscious culture. And like DISCOVER DANNON, both PIL cookbooks prominently display the Dannon trademark on the cover. We will not further tempt the reader with a sampling of PIL's arsenal of yogurt-based concoctions.
There is not really any dispute that the salient PIL recipes are functionally identical to their counterparts in DISCOVER DANNON. The recipes have the same titles but display certain differences in the listing of ingredients, directions for preparation, and nutritional information. However, it doesn't take Julia Child or Jeff Smith to figure out that the PIL recipes will produce substantially the same final products as many of those described in DISCOVER DANNON.
PIL filed a three-count complaint in the Northern District of Illinois on February 22, 1994, alleging that Meredith Corporation had engaged in unfair and deceptive trade practices in violation of the Lanham Act, 15 U.S.C. § 1125, the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/2, and the Illinois Uniform Deceptive Trade Act, 815 ILCS 510/2. PIL alleged that Meredith had styled its publications deliberately to resemble PIL's publications, thereby misleading and confusing consumers. PIL also alleged that Meredith had induced retailers to place Meredith's publications in the wire racks at supermarkets that were contractually reserved for PIL publications. PIL asserted that it had suffered revenue losses as a result of Meredith's actions, and it specified damages of $200,000.
On March 1, 1995, Meredith filed a three-count counterclaim against PIL. The first count alleged infringement of Meredith's copyright in DISCOVER DANNON under the Copyright Act of 1976, 17 U.S.C. § 101 et seq. Counts two and three mirrored PIL's complaint against Meredith by alleging violations of the Lanham Act and the Illinois Consumer Fraud and Deceptive Business Practices Act. On August 17, Meredith filed a motion for a preliminary injunction against any further copyright infringement by PIL.
PIL filed a response to this motion on August 24. In this response, PIL incorporated by reference the arguments it had presented in its memorandum in support of its motion for summary judgment on Meredith's counterclaim, which it had filed the day before. In the memorandum, PIL argued that the compilation copyright in DISCOVER DANNON did not extend to the individual recipes because recipes are not subject to copyright protection as a matter of law. Meredith filed its reply on August 31, in which it joined the issue of the copyrightability of the recipes, which was a major premise of Meredith's counterclaim.
The district court conducted a hearing on Meredith's motion for the preliminary injunction on October 4 at which counsel for PIL failed to appear. The district court thereafter issued the preliminary injunction on October 6. The injunction prohibited PIL from
publishing, distributing or selling any books or magazines that contain one or more of the following twenty six (26) recipes: Blueberry-Lemon Muffins, Crunchy Tuna Waldorf Salad, Gingered Fruit Salad, SunflowerHerb Dressing, Fresh Basil and Pepper Potato Salad, Curried Turkey and Peanut Salad, Orange Poppy Seed Dressing, Spicy Bean Tostadas, Chunky Chili Dip, Creamy Tarragon Dip, Savory Dijon Chicken Spread, Swiss 'n' Cheddar Cheeseball, Italian Ham Lasagna, Mustard Pork Chops, Broccoli-Tuna Pasta Toss, Strawberry Brulee, Yogurt Drop Cookies, Fruit Trifle, Lemony Carrot Cake, Lemon Yogurt Frosting, Easy Fruit Shortcake, Orange-Filled Cream Puffs, Chocolate Fruit Torte, Creamy Citrus Cheesecake, Nutty Cheese and Apple Salad, Creamy Vegetable Potpourri.
In addition, the injunction ordered PIL to recall unsold copies of its publications containing any of the identified recipes. PIL subsequently filed a motion to vacate the injunction on October 11, which the district court denied, and PIL filed a notice of appeal on October 13.
Before getting to the merits, we address a procedural oddity that causes us some concern. The district court issued the preliminary injunction based upon findings of fact and law contained in its order dated October 6. This order was preceded by Meredith's original motion for the injunction, PIL's response, and Meredith's reply, all of which were on file with the district court by August 31. On September 27 (ten days prior to the October 4 hearing), Meredith tendered what it termed "supplemental evidence" to the district court, which purported to "prove beyond any doubt that PIL knew that the recipes it obtained from Dannon, and which it copied for use in its infringing publications, came straight from Meredith's publication, Discover Dannon."
This supplemental evidence consisted of a letter, written on Dannon letterhead, from Eileen O'Gorman to Ivy Lester of PIL. The letter references an enclosed list of 102 recipes that includes each recipe's "title and origin." Meredith claimed in its submission that the attached list of recipes demonstrated that the sources of origin for many of the recipes were Meredith publications, namely DISCOVER DANNON and THE BETTER HOMES AND GARDENS COOKBOOK. Indeed, the list does identify 13 recipes as originating in DISCOVER DANNON and 12 as originating in THE BETTER HOMES AND GARDENS COOKBOOK.
In its order issuing the injunction, the district court made the following findings:
The next element Meredith would have to show to prevail on the merits would be that PIL copied Meredith's copyrighted work. There is adequate and indeed persuasive evidence that this is precisely what PIL did. PIL received recipes from The Dannon Company. As indicated by the [sic] Meredith's latest submission to the Court, Dannon's submission to PIL made clear to PIL that many of the recipes were indeed derived from Discover Dannon.
It seems clear that the district court based this finding in substantial part upon Meredith's September 27 submission.
So must it also have seemed to PIL. In two motions filed on October 11 (one week after the hearing at which PIL was not represented), PIL moved the district court to vacate the preliminary injunction and to strike Meredith's September 27 submission. In its motion to vacate the...
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