Brandon v. Regents of University of California, Civ. A. No. 76-580-C.

• Citation: 441 F. Supp. 1086
• Decision Date: 12 October 1977
• Docket Number: Civ. A. No. 76-580-C.
• Parties: Liane BRANDON, Plaintiff, v. The REGENTS OF the UNIVERSITY OF CALIFORNIA, Defendant.
• Court: U.S. District Court — District of Massachusetts

441 F. Supp. 1086

Liane BRANDON, Plaintiff, v. The REGENTS OF the UNIVERSITY OF CALIFORNIA, Defendant.

Civ. A. No. 76-580-C.

United States District Court, D. Massachusetts.

October 12, 1977.

Blair L. Perry of Hale & Dorr, Boston, Mass., for plaintiff.

Frank H. Handy, Jr., Boston, Mass., for defendant.

OPINION

CAFFREY, Chief Judge.

This civil action, commenced under 15 U.S.C.A. § 1125(a) (1970), came before the Court for non-jury trial. Plaintiff, Liane Brandon, is a resident and citizen of the Commonwealth of Massachusetts. Defendant, the Regents of the University of California, is a corporation organized under the laws of California with its principal place of business in California. Defendant has been engaged in doing business in Massachusetts at all relevant times. Plaintiff seeks injunctive relief, an accounting and recovery of lost profits, compensatory damages, and costs for alleged unfair competition, false description, and false representation in connection with the distribution of a film by defendant through its Extension Media Center (EMC) in Berkeley, California. EMC is engaged in the business of selling and renting prints of some 3,000 motion picture films throughout the United States as well as in foreign countries. Plaintiff claims jurisdiction on the basis of a federal question, 28 U.S.C.A. § 1331 (1970), and diversity of citizenship, 28 U.S.C.A. § 1332 (1970), alleging in addition that the matter in controversy exceeds the sum of $10,000, exclusive of interest and costs.

Upon completion of the trial and pending the decision herein, this Court, on plaintiff's motion pursuant to Rule 65, Fed.R.Civ.P., entered a preliminary injunction enjoining defendant from exhibiting, selling, renting, leasing, distributing or transferring any prints of the disputed film, and from publishing or distributing any catalogue or similar advertising or promotional material referring to the film.

At the two-day non-jury trial, the parties called six witnesses and introduced into evidence fifty exhibits, including film prints, promotional material, film reviews, catalogues, correspondence, purchase orders, and EMC's records of the sales and rentals of the film in question. The Court viewed the films offered by both parties. Requested findings of fact and rulings of law have been submitted. Pursuant to Fed.R.Civ.P. 52(a), I find and rule as follows:

Plaintiff Liane Brandon is an Assistant Professor of Film Production and Media Studies at the University of Massachusetts in Amherst. She is an experienced film-maker who has produced, directed and edited a number of short motion picture films that have been widely distributed throughout the United States and in foreign counties. In 1970-1971, plaintiff produced, directed and edited an eight-minute black-and-white motion picture film entitled "Anything You Want To Be" (plaintiff's film). Plaintiff's film is concerned with the general subject matter of sex-role stereotyping in contemporary American society. The film is aptly summarized in the following review published on March 5, 1973 by the defendant through its EMC:

Anything You Want To Be (New Day Films) by Liane Brandon . . . identifies the conventional self-images instilled in women as well as the stereotyped roles they are forced into. A high school girl is shown being continuously frustrated as she tries to make independent choices regarding her future. She wants to be class president, but ends up as secretary instead. She visits her guidance counselor to discuss her desire to become a doctor, and comes out dressed in nurse's attire. Chemical instruments are mysteriously transformed into kitchen utensils as she tries to use them, and a book on political history she wants to read is surreptitiously replaced by a cookbook. At every step, the alternatives to the traditional female roles seem to disappear and the girl's aspirations are foiled. Despite the seriousness of its theme, this film's approach is light, even humorous, and it is particularly valuable for use with junior and senior high school audiences.

Plaintiff owns all rights in and to her film, subject only to distribution rights granted to three distributors. Public distribution of plaintiff's film, through the sale and rental of prints of the film, commenced in 1971 and has continued to the present time. From 1972 to date, plaintiff's film has been distributed by the sale and rental of prints by New Day Films, a cooperative distribution group of independent filmmakers. In addition, The Eccentric Circle, a commercial film distributor, distributed plaintiff's film by the sale of prints from 1972 to 1976. Marlin Motion Pictures Ltd., of Ontario, Canada, also distributed plaintiff's film by the sale and rental of prints from 1974 to date. From 1972 to date, New Day Films and The Eccentric Circle distributed catalogues, brochures, mailing circulars and other materials widely advertising and promoting plaintiff's film. Reviews of plaintiff's film have been published in a large number of books, magazines, professional journals, and newspapers. Moreover, plaintiff's film has been shown at a number of important film festivals and institutional exhibitions in the United States, receiving the high honor of a Blue Ribbon at the American Film Festival in 1972.

I find that plaintiff's film has received widespread critical acclaim which, coupled with the extensive advertising and promotional efforts by plaintiff and her distributors, has made the title of the film, "Anything You Want To Be," well-known as referring to and identifying plaintiff's film to persons who would purchase, rent, and exhibit films dealing with women's rights and sex-role stereotyping.

In response to a growing demand for films about women, EMC formed a special committee in the summer of 1972 to evaluate existing films. The committee screened approximately fifty films, recommending that EMC purchase a dozen of them, including plaintiff's film. In October, 1972, defendant submitted a purchase order to New Day Films for a print of plaintiff's film. Plaintiff, however, through her distributor, refused to authorize the sale of a print of her film to defendant for rental purposes, and so informed defendant in writing. On May 15, 1973, defendant wrote directly to the plaintiff, inquiring whether it could purchase a print of plaintiff's film, together with a print of another film, for rental use. On May 17, 1973, and on June 19, 1973, plaintiff wrote to defendant to reconfirm her prior refusal to sell prints of her film to defendant for rental purposes. In May, 1974, defendant attempted for the third time to purchase a print of plaintiff's film, this time by submitting a purchase order to The Eccentric Circle. That order was cancelled when defendant again was informed that a print of plaintiff's film would not be sold for rental distribution by the EMC.

In early 1974, the Director of EMC, Cameron Macauley, traveled to the Far West Laboratory for Educational Research and Development (Far West) to view three short films dealing with sex-role stereotyping produced by Far West employees Gloria Golden and Lisa Hunter. One of the Far West films screened was entitled, "Anything They Want To Be," a title substantially identical to the title of plaintiff's well-known film, "Anything You Want To Be." Far West copyrighted the film in 1974 and is still the copyright owner. Allegedly conceived by Golden, the Far West film, by comparison with plaintiff's film, was seven rather than eight minutes long, addressed the same issue of sex-role stereotyping in intellectual and career-oriented activities, and treated the experiences of several, rather than a single, high school girls. Moreover, scenes in the Far West film are quite reflective of scenes or dialogue in plaintiff's film. Scenes in the Far West film, for example, question whether a girl can become a fireman, a chemist, or a doctor; the identical occupations are portrayed or mentioned in plaintiff's film.

Producers Golden and Hunter both testified as witnesses for the defendant at the trial of this action. Hunter admitted responsibility for the rental of a print of plaintiff's film to use in preparation of the Far West film. In testimony I find to be not credible, Hunter also stated that she had never viewed plaintiff's film before making the Far West film. When asked on cross-examination to explain the reasons for the similarities between the titles of the Golden-Hunter films produced at Far West and the titles of well-known films previously made by others,¹ including plaintiff, Golden offered no explanation, while Hunter gave an evasive response. Each of them testified that the title "Anything They Want To Be" was derived from a line of dialogue in their film, in which a teacher says to a little girl "Well, of course, Laura, anybody can be anything they want to be." However, that line of dialogue was not a spontaneous utterance of a real teacher filmed in an actual classroom. Rather, it was a line spoken by an actor using a script prepared under the direction of producers Golden and Hunter. After viewing both films and scrutinizing the testimony of Golden and Hunter, I find, first, that this line of dialogue was deliberately included in the script to...