Arica Institute, Inc. v. Palmer
| Decision Date | 22 July 1992 |
| Docket Number | No. 771,D,771 |
| Citation | 970 F.2d 1067 |
| Parties | 1992 Copr.L.Dec. P 26,960, 76 Ed. Law Rep. 711, 23 U.S.P.Q.2d 1593 ARICA INSTITUTE, INC., Plaintiff-Appellant, v. Helen PALMER and Harper & Row Publishers, Incorporated, Defendants-Appellees. ocket 91-7859. |
| Court | U.S. Court of Appeals — Second Circuit |
Arthur J. Ginsburg, Steven C. Beer and Kyran Cassidy, of counsel, Frankfurt, Garbus, Klein & Selz, P.C., New York City, for plaintiff-appellant.
Richard Dannay and David O. Carson, of counsel, Schwab, Goldberg, Price & Dannay, New York City, for defendants-appellees.
Before: VAN GRAAFEILAND, WALKER and McLAUGHLIN, Circuit Judges.
Plaintiff-appellant Arica Institute, Inc. appeals from a judgment of the United States District Court for the Southern District of New York (Patterson, J.) entered August 8, 1991 granting summary judgment to defendants-appellees Helen Palmer and Harper & Row Publishers, Inc., and dismissing the complaint against them which alleged violations of the Copyright Act of 1976, 17 U.S.C. § 101 et seq., the Lanham Trademark Act, 15 U.S.C. § 1051 et seq., and common law unfair competition and palming off. Affirmed.
The facts of this case are fully reported at 761 F.Supp. 1056 (S.D.N.Y.1991). We briefly summarize those facts most relevant to this appeal.
Plaintiff-appellant Arica Institute, Inc. ("Arica") is a not-for-profit educational institution which provides trainings based on the work of the Institute's founder: Oscar Ichazo ("Ichazo"), himself a student of Zen, Sufism, Yoga, Buddism, Confucianism, I Ching, and the Kabbalah. According to the affidavit of Arica's Executive Director Elliot Dunderdale:
The Arica system constitutes a body of practical and theoretical knowledge in the form of a nine-level hierarchy of Ichazo's "enneagons," central to this lawsuit, are nine-pointed figures, enclosed in a circle, with straight lines connecting each point to two others. Each point corresponds to a given "ego fixation" as represented in the following enneagon of the Fixations:
Ichazo, Interviews with Oscar Ichazo 15 (1982) (hereinafter, "lnterviews "). The six other fundamental enneagons portray qualities of the nine fixations in labels attached to the point associated with that fixation. For example, the following enneagon of the Passions indicates that the dominant passion of the "Indolent" fixation (the top point on the enneagon) is "Laziness," that of the "Resentment" fixation is "Anger," that of the "Flattery" fixation is "Pride," and so on:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
Ichazo, Interviews at 18. Arica uses the seven fundamental enneagons to teach its students the qualities associated with their particular ego fixation.
Ichazo held his first training in Arica, Chile in 1971, the year of the Arica Institute's New York State incorporation. Today there are forty or so Arica training centers, located in the United States, South America, Europe and Australia. Arica also holds copyrights in approximately forty-seven training manuals, books, and journals ("the copyrighted materials"). With minor exceptions, including Interviews, Arica limits distribution of its copyrighted materials to training participants who must return them after use.
Arica claims that defendants-appellees Helen Palmer ("Palmer") and Harper & Row, the author and publisher respectively of The Enneagram: Understanding Yourself and the Others in Your Life ("The Enneagram "), have infringed on its copyrights. Palmer holds a Masters degree The Enneagram, as its title would suggest, takes as its principle subject the nine-pointed figure which Ichazo also utilized, the terms "enneagon" and "enneagram" being, for our purposes, interchangeable. The opening paragraph sets forth the book's scope:
in clinical psychology, and teaches at a private college in California and at the Center for the Investigation and Training of Intuition (CITI) in Berkeley, California, an institution which she founded and which provides "intuition training." Her first book, The Enneagram, runs 392 pages. HarperCollins (successor-in-interest to Harper & Row, Inc.), published the book in hardcover in November, 1988, and in paperback in 1991
The Enneagram is an ancient Sufi teaching that describes nine different personality types and their interrelationships. The teaching can help us to recognize our own type and how to cope with our issues; understand our work associates, lovers, family, and friends; and to appreciate the predisposition that each type has for higher human capacities such as empathy, omniscience, and love. This book can further your own self-understanding, help you work out your relationships with other people, and acquaint you with the higher abilities that are particular to your type of mind.
Part I, entitled "Orientation to the Enneagram," includes chapters on "The Background of the [Enneagram] System and Introduction to Type," "The Structure of the Enneagram Diagram," and "Contributors to the System," the last of which discusses Ichazo's work. Part II, entitled "The Nine Points of the Enneagram," comprises nine chapters each examining a given personality type (Palmer's term for an ego fixation) and beginning with a banner listing of the attributes associated with that type. Enneagram figures appear at various points, most notably at page 50 where there are seven enneagrams, six virtually identical to their Ichazo counterparts.
Palmer identified as her principal source Claudio Naranjo, a psychologist with whom Palmer studied beginning in 1973. Naranjo attended Ichazo's 1971 training in Arica, Chile, but shortly thereafter separated from Ichazo, apparently over his desire to apply more contemporary psychological ideas to Ichazo's material. Palmer testified that her other sources included: Interviews; a chapter from Transpersonal Psychologies (Charles Tart, ed., 1975) entitled "The Arica Training" written by Joseph Hart and John Lilly, both of whom had attended Ichazo's 1971 training; and the enneagram-related work of the late Russian philosopher and mystic Gurdjieff. Palmer testified that she never personally attended an Arica training, nor, prior to publication of The Enneagram, had she seen any of Arica's copyrighted materials with the exception of Interviews.
Arica's complaint, filed on August 6, 1990, alleged violations of the Copyright Act of 1976, 17 U.S.C. § 101 et seq., the Lanham Trademark Act, 15 U.S.C. § 1051 et seq., and claims of common law unfair competition and palming off. Judge Patterson, in a thoughtful opinion dated April 9, 1990, denied Arica's motion for a preliminary injunction to prevent release of the paperback edition of The Enneagram. Arica Institute, Inc. v. Palmer, 761 F.Supp. 1056 (S.D.N.Y.1991). In a second opinion entered August 6, 1991, the district court granted defendants' motion for summary judgment, Arica Institute, Inc. v. Palmer, 770 F.Supp. 188 (S.D.N.Y.1991), and, on August 8, 1991, entered judgment. Arica appeals from this judgment.
At the outset, we note that on appeal of a grant of summary judgment "we apply the same standard as the district court did in deciding the Rule 56 motion and determine de novo whether a genuine issue as to any material fact exists" and whether the moving party was properly entitled to judgment as a matter of law. See Taggart v. Time, Inc., 924 F.2d 43, 45-46 (2d Cir.1991); Fed.R.Civ.Pro. 56(c). In making this determination, we view all inferences in the light most favorable to the non-moving party and affirm only where no reasonable trier of fact could have found in her favor. Taggart, 924 F.2d at 46.
I. The Copyright Infringement Claim.
Arica's copyright infringement claim consists of two parts: First, Arica alleges that Palmer's text appropriates numerous words and phrases from the copyrighted materials. Secondly, Arica asserts that Palmer unlawfully reproduces the seven core Ichazo enneagrams representing the ego fixations. Arica makes this second claim in three, separate ways: (1) Palmer appropriates the precise words with which Ichazo has labeled his figures; (2) Palmer appropriates the sequence in which Ichazo's labels appear; (3) Palmer appropriates Ichazo's decision to attach the ego fixation labels to the enneagram figure.
To succeed in its infringement claim, Arica must demonstrate two elements: "(1) ownership of a valid copyright; and (2) copying of constituent elements of the work that are original." Feist Publications, Inc. v. Rural Telephone Serv., Inc., --- U.S. ----, ----, 111 S.Ct. 1282, 1296, 113 L.Ed.2d 358 (1991); 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.01 at 13-4 to 13-5 (1991) [hereinafter Nimmer, Nimmer on Copyright ]. The parties dispute only the second of these two elements. See Arica, 770 F.Supp. at 190.
Since direct evidence of copying is rare, a court may infer it upon a showing that...
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