Cavalier v. Random House, Inc.

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: William A. Fletcher
• Citation: Cavalier v. Random House, Inc., 297 F.3d 815 (9th Cir. 2002)
• Decision Date: 21 May 2002
• Docket Number: No. 00-56192.,00-56192.
• Parties: Wanda A. CAVALIER, an individual; Christopher P. Cavalier, an individual, Plaintiffs-Appellants, v. RANDOM HOUSE, INC., a Nebraska Corporation; Children's Television Workshop Inc., a New York Corporation; CTW Publishing Company, LLC, a Joint Venture state unknown, Defendants-Appellees.

297 F.3d 815

Wanda A. CAVALIER, an individual; Christopher P. Cavalier, an individual, Plaintiffs-Appellants, v. RANDOM HOUSE, INC., a Nebraska Corporation; Children's Television Workshop Inc., a New York Corporation; CTW Publishing Company, LLC, a Joint Venture state unknown, Defendants-Appellees.

No. 00-56192.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 4, 2001.

Filed May 21, 2002.

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Martina A. Silas, Encino, CA, for the plaintiffs-appellants.

Stephen G. Contopulos and Bradley H. Ellis, Sidley Austin Brown & Wood, Los Angeles, CA, for the defendants-appellees.

Appeal from the United States District Court for the Central District of California; Carlos Moreno, District Judge, Presiding. D.C. No. CV-99-10175-CRM.

Before: FERGUSON, T.G. NELSON and W. FLETCHER, Circuit Judges.

WILLIAM A. FLETCHER, Circuit Judge.

Wanda and Christopher Cavalier (the "Cavaliers") appeal the district court's summary judgment and dismissal in favor of defendants Random House, Inc. ("Random House"), the Children's Television Workshop Inc., and CTW Publishing Co. (collectively, "CTW"). In an action for copyright and trademark infringement, false designation of origin, and unfair competition, the Cavaliers alleged that defendants published books containing art work, text, and characters virtually identical to materials previously submitted to Random House and CTW by the Cavaliers. We find that the "moon night light" cover and the "the illustration of stars relaxing on clouds" illustration raise triable issues of fact as to substantial similarity. We therefore reverse in part the grant of summary judgment, limited to the Cavaliers' copyright infringement claim as to the cover and illustration. We otherwise affirm.

I

A. Background

The Cavaliers created copyrighted works involving several characters who are featured in children's stories. Their main character, Nicky Moonbeam, an anthropomorphic moon, teaches children to overcome their fears (including fear of the dark) and encourages children to follow their dreams. The Cavaliers copyrighted these works in the period from 1992 to 1995.

From 1995 through 1998, the Cavaliers submitted more than 280 pages of material, including their copyrighted works, to Random House and CTW. The first submission consisted of two stories — Nicky Moonbeam: The Man in the Moon and Nicky Moonbeam Saves Christmas — and the design for a "moon night light" to be built directly into the back cover of a "board book." A "board book" is a book with sturdy, thick pages, designed for use by young children. Later submissions in 1996 and 1998 consisted of "pitch materials," which included detailed illustrations, ideas for general story lines and television programs, specific traits of the Nicky Moonbeam characters, and goals for the Nicky Moonbeam stories.

After face-to-face meetings with the Cavaliers regarding their submissions, Random House and CTW rejected their works. Soon thereafter, in February 1999, Random House and CTW jointly published the books Good Night, Ernie and Good Night, Elmo, and, in September 1999, CTW aired the animated television series Dragon Tales.

B. Description of the Works

1. The Cavaliers' Works

Nicky Moonbeam: The Man in the Moon is an approximately 3500-word story. Its main characters are Nicky Moonbeam and Daisy, a five-year-old child. Nicky is a child-like figure drawn with a full moon head, sometimes with and sometimes without a full body. He has egg-shaped eyes, a human-like nose, and a mouth, with moon rocks or craters on his face. Nicky has star friends who have faces drawn in the upper point of the stars, with small, lidded eyes and no nose. In the latest version of the story, Nicky is sad and lonely because he cannot stop dreaming about meeting a child. Nicky sails the Dream Weaver, a sailboat propelled by moonbeams, to Earth where he meets Daisy. After explaining what it is like to be the man-in-the-moon and all the jobs he has, Nicky takes Daisy for a ride in the night sky on his boat. They play in the clouds. Daisy floats on a cloud that looks like a dragon while Nicky balances on an airplane-shaped cloud. After playing all night in the clouds, Nicky and Daisy return to Earth where they play at the beach, building sand castles, playing with crabs, and listening to the waves. Because he is having so much fun, Nicky does not want to return to the sky. But after Daisy explains that disaster would befall the Earth if Nicky did not go back, Nicky returns to the sky and continues to do his "man in the moon" job, comforting and encouraging children. Nicky is happier than he has ever been. He resolves to continue to surround the children with his "moonbeam love," stretching his moonbeam arms to hug the world.

The Cavaliers' second story, Nicky Moonbeam Saves Christmas, is told in 1700-2500 words (depending on the version). In this story, the reindeer Rudolph is sick and cannot guide Santa on his rounds. Nicky is summoned to the North Pole by the chief elf, where he learns about Santa's dilemma. Daisy, who has traveled with Nicky to the North Pole on the Dream Weaver boat, suggests that Nicky lead Santa's sleigh using his moonbeams to light the way. Nicky is unsure whether he can do it, but Daisy convinces him he must try. Nicky saves the day, using his moonbeams to lead the sleigh while Rudolph, who has been bolstered with cough syrup and Mrs. Claus' chicken soup, guides them with a map. They complete Santa's rounds just as Nicky's moonbeams are exhausted. A celebration occurs at the North Pole. Nicky is proud because he believed in himself and completed the job.

The Cavaliers' "night light in the sky" idea was that the back cover of a board book featuring Nicky Moonbeam would extend some distance beyond the front cover and the pages, so that a portion of the inside of the back cover would be visible on the right-hand side, both when the book was closed and when it was being read. On the extended (visible) portion of the inside back cover would be a night light in the shape of a pearly white moon with black eyes and pink cheeks. Stars would surround the moon night light. The "on" button for the moon night light would be a small circle with a star on it, positioned below and to the right of the night light. See Appendix, Fig. 1.A. As the Cavaliers described it in their submission materials, "The moon night light would be positioned to the right free of the pages.... An interactive button in the shape of a circle..., star placed inside. As a child pushes the button in the circle the light shines and stays on for a full minute."

The Cavaliers' proposed art work includes the following illustrations, related to the stories: (1) stars wearing woolen and top hats while relaxing and playing on clouds, see Appendix, Fig. 2.A; (2) a star being polished with cloths by other stars, see Appendix, Fig. 3.A; (3) a smiling moon sending light blue "moonbeams" down to earth, with star dust trail and suggested text, "Nicky ... shines his long beams to earth for a child to walk up, hop on"; and (4) Nicky, as the moon, hanging just outside of a child's bedroom window and sending stars to float around a child's room and glow while the child falls asleep.

The Cavaliers also suggested a "Just Imagine" book series featuring Nicky Moonbeam; proposed the use of "Nicky Badges" and "Glow Stars"; described and illustrated the concept of a "star tree," from which characters could pluck a star; illustrated a small girl floating on a dragon-shaped cloud; introduced Nicky's "school in the sky"; and created a "fear of the dark" checklist to be packaged with its first story or television episode on that theme.

2. Random House and CTW's Works

Good Night, Ernie and Good Night, Elmo are both five-page board books featuring Sesame Street Muppet characters. In Good Night, Ernie, told in 74 words, Ernie wonders about the stars and takes an imaginary journey in the night sky. He wonders how many stars there are, and counts them as he sits on a crescent moon. He wonders where the stars go during the day and he visits them. He wonders how the stars stay bright, and he thinks about helping them shine. All of this "wondering" makes Ernie tired. Ernie returns to his bed which is floating in the sky surrounded by stars. He and the stars wish each other good night. The stars have ping-pong ball-shaped eyes touching a round bulbous nose.

In Good Night, Elmo, told in 119 words, Elmo notices the moon shining on his pillow. The moon invites him to "hop on" its moonbeam and "take a ride" through the night sky, where Elmo races a shooting star, sees the cow jumping over the moon, and begins jumping like the cow. All of that jumping tires Elmo, and he rides a moonbeam back to his bed, where he begins to fall asleep as the moon shines through his window. The moon on the cover has ping-pong ball-shaped eyes touching a round bulbous nose.

A star night light, surrounded by stars, is built into the extended inside back cover to the right of the free pages of Good Night, Ernie. A comparable moon night light is built into the extended inside back cover of Good Night, Elmo. The instructions for the night light are identical for both books: "To turn on Ernie's [Elmo's] night light, press the star button. It turns off by itself."

The Dragon Tales series features friendly talking dragons that take children on adventures to teach them how to "face their fears, and to find ways of coping with everyday problems, like making friends and learning new skills." When Emmy, a six-year-old, and Max, her four-year-old brother, move into a new home, they discover a magical dragon scale. When they chant a poem, the scale transports them to Dragon Land, a brightly colored fantasy world in which the children discover talking trees, a rainbow river, gnomes, giants, and other fanciful creatures and geography. One of the dragon characters is a wise old teacher...