Morrissey v. Procter & Gamble Company, 6882.

• Citation: 379 F.2d 675
• Decision Date: 28 June 1967
• Docket Number: No. 6882.,6882.
• Parties: Frank MORRISSEY, Plaintiff, Appellant, v. The PROCTER & GAMBLE COMPANY et al., Defendants, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

379 F.2d 675 (1967)

Frank MORRISSEY, Plaintiff, Appellant, v. The PROCTER & GAMBLE COMPANY et al., Defendants, Appellees.

No. 6882.

United States Court of Appeals First Circuit.

June 28, 1967.

Russell H. McGuirk and Raymond P. Blanchard, Portsmouth, N. H., with whom Flynn, Powell & McGuirk, Portsmouth, N. H., was on brief, for appellant.

Albert E. Strasser and Charles H. Melville, Cincinnati, Ohio, with whom Melville, Strasser, Foster & Hoffman, Cincinnati, Ohio, and Choate, Hall & Stewart, Boston, Mass., were on brief, for appellees.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

ALDRICH, Chief Judge.

This is an appeal from a summary judgment for the defendant. The plaintiff, Morrissey, is the copyright owner of a set of rules for a sales promotional contest of the "sweepstakes" type involving the social security numbers of the participants. Plaintiff alleges that the defendant, Procter & Gamble Company, infringed, by copying, almost precisely, Rule 1. In its motion for summary judgment, based upon affidavits and depositions, defendant denies that plaintiff's Rule 1 is copyrightable material, and denies access. The district court held for the defendant on both grounds.

Taking the second ground first, the defendant offered affidavits or depositions of all of its allegedly pertinent employees, all of whom denied having seen plaintiff's rules. Although the plaintiff, by deposition, flatly testified that prior to the time the defendant conducted its contest he had mailed to the defendant his copyrighted rules with an offer to sell, the court ruled that the defendant had "proved" nonaccess, and stated that it was "satisfied that no material issue as to access * * * lurks * * * in the record."

The court did not explain whether it considered defendant's showing to have constituted proof overcoming the presumption of receipt arising from plaintiff's testimony of mailing, or whether it felt there was an unsatisfied burden on the plaintiff to show that the particularly responsible employees of the defendant had received his communication. Either view would have been error. A notice to the defendant at its principal office, as this one assertedly was, is proper notice. There is at least an inference that the letter reached its proper destination. Even if we assume that if, at the trial of the case, it should be found that the particular employees of the defendant responsible for the contest were in fact without knowledge of plaintiff's rules, defendant would be free of a charge of copying, cf. Pinci v. Twentieth Century-Fox Film Corp., S.D. N.Y., 1951, 95 F.Supp. 884; Dezendorf v. Twentieth Century-Fox Film Corp., S.D.Cal., 1940, 32 F.Supp. 359, aff'd, 9 Cir., 118 F.2d 561, on a motion for summary judgment a plaintiff should not have to go to the point of showing that every employee of a corporate defendant received his notification. Nor can it be said that no issue of fact as to access "lurks" merely because it seems to the court that plaintiff's own proof has been satisfactorily contradicted. Nothing is clearer than this on a motion for summary judgment; if a party has made an evidentiary showing warranting a favorable inference, contradiction cannot eliminate it. Summary judgment may not be granted where there is the "slightest doubt as to the facts." Peckham v. Ronrico Corp., 1 Cir., 1948, 171 F.2d 653, 657; Arnstein v. Porter, 2 Cir., 1946, 154 F.2d 464, 468. Defendant's argument misreads Dressler v. MV Sandpiper, 2 Cir., 1964, 331 F.2d 130. The presumption arising from mailing remained in the case.¹

It is true that we have, on rare occasion, held that even though there is some slight evidence favoring a plaintiff, the evidence contrary may be so overpowering that a verdict for the plaintiff cannot be permitted, and judgment must be ordered for the defendant. Dehydrating Process Co. v. A. O. Smith Corp., 1 Cir., 1961, 292 F.2d 653, cert. den. 368 U.S. 931, 82 S.Ct. 368, 7 L.Ed.2d 194; see Magnat Corp. v. B & B Electroplating Co., 1 Cir., 1966, 358 F.2d 794. We have never suggested that such a principle is applicable to a motion for summary judgment, and we do not now.² Cf. Robbins v. Milner Enterprises, Inc., 5 Cir., 1960, 278 F.2d 492, 496-497.

The second aspect of the case raises a more difficult question. Before discussing it we recite plaintiff's Rule 1, and defendant's Rule 1, the italicizing in the latter being ours to note the defendant's variations or changes.

"1. Entrants should print name, address and social security number on a boxtop, or a plain paper. Entries must be accompanied by * * * boxtop or by plain paper on which the name * * * is copied from any source. Official rules are explained on * * * packages or leaflets obtained from dealer. If you do not have a social security number you may use the name and number of any member of your immediate family living with you. Only the person named on the entry will be deemed an entrant and may qualify for prize.

"Use the correct social security number belonging to the person named on entry * * * wrong number will be disqualified."

(Plaintiff's Rule)

"1. Entrants should print name, address and Social Security number on a Tide boxtop, or on a plain paper. Entries must be accompanied by Tide boxtop (any size) or by plain paper on which the name `Tide\' is copied from any source. Official rules are available on Tide Sweepstakes packages, or on leaflets at Tide dealers, or you can send a stamped, self-addressed envelope to: Tide `Shopping Fling\' Sweepstakes, P.O. Box 4459, Chicago 77, Illinois.

"If you do not have a Social Security number, you may use the name and number of any member of your immediate family living with you. Only the person named on the entry will be deemed an entrant and may qualify for a prize.

"Use the correct Social Security number, belonging to the person named on the entry — wrong numbers will be disqualified."

(Defendant's Rule)

The district court, following an earlier decision, Gaye v. Gillis, D.Mass., 1958, 167 F.Supp. 416, took the position that since the substance of the contest was not copyrightable, which is unquestionably correct, Baker v. Selden, 1879, 101 U.S. 99, 25 L.Ed. 841; Affiliated Enterprises v. Gruber, 1 Cir., 1936, 86...