Hartman v. Hallmark Cards, Inc.

• Decision Date: 27 February 1986
• Docket Number: No. 85-3157-CV-S-4.,85-3157-CV-S-4.
• Citation: 639 F. Supp. 816
• Parties: Debra Kay HARTMAN, Plaintiff, v. HALLMARK CARDS, INCORPORATED, and Mattel, Inc., Defendants.
• Court: U.S. District Court — Western District of Missouri

639 F. Supp. 816

Debra Kay HARTMAN, Plaintiff, v. HALLMARK CARDS, INCORPORATED, and Mattel, Inc., Defendants.

No. 85-3157-CV-S-4.

United States District Court, W.D. Missouri, S.D.

February 27, 1986.

David Smith, Branson, Mo., and Charles Grimes, Stanford, Conn., for plaintiff.

Robert Driscoll, Judith Whittaker, Kansas City, Mo., and William McDonald, Springfield, Mo., for defendant Hallmark.

Frank M. Evans, Springfield, Mo., and Ronald Reagin, Los Angeles, Cal., for defendant Mattel.

ORDER

RUSSELL G. CLARK, District Judge.

Defendant Hallmark Cards, Inc. has filed a motion for summary judgment on all counts. Plaintiff has filed a motion to strike the affidavit of Hallmark in-house counsel Judith Whittaker. Defendant's motion for summary judgment will be granted. Plaintiff's motion to strike affidavit will be denied.

The Court notes that the same issues raised by defendant Hallmark's motion for summary judgment are also applicable to defendant Mattel; however, there is no motion pending filed on behalf of Mattel.

On May 6, 1985, the plaintiff filed a seven count complaint against Hallmark Cards and Mattel Toy Company, Inc. Count I alleged copyright infringement. Count II alleged contributory copyright infringement. Count III alleged trademark infringement and false designation of origin. Count IV alleged contributory false designation of origin. Count V alleged false representation and false advertising. Count VI alleged misappropriation. Count VII alleged unfair competition. According to the complaint plaintiff has exclusive rights to the copyright material designated by the plaintiff as "the Rainbow Island Property." The plaintiff, in her complaint, alleges that the defendants infringed upon that copyrighted material in its videotape production of "Peril in the Pits", in its production of greeting cards and other paper products, in its manufacturing of dolls and other toys, and in a merchandising and licensing program conducted by defendant Hallmark Cards. In addition, the plaintiff alleges that what she has copyrighted in the "Rainbow Island Property" is "a unique color concept, namely, that things can be painted multi-colors with a rainbow."

In contemplating a motion for summary judgment under Rule 56, Fed.R.Civ.P., this Court is mindful of the strict standards imposed by the Eighth Circuit Court of Appeals. In Klinge v. Lutheran Charities Ass'n of St. Louis, 523 F.2d 56 (8th Cir. 1975), the Court stated that such a motion is to be viewed in the light most favorable to the opposing party who also must receive the benefit of all reasonable inferences obtainable from the material before the Court. In Butler v. MFA Life Ins. Co., 591 F.2d 448 (8th Cir.1979), the Court held that summary judgment should not be granted unless the moving party has established his right to judgment with such clarity that no room for controversy remains and has demonstrated that the nonmoving party is not entitled to recover under any discernible circumstances. Copyright infringement cases often present extremely close issues of fact and summary judgment has been disfavored in cases involving intellectual property. However, summary judgment in a copyright infringement case is appropriate if reasonable minds could not differ as to the absence of substantial similarity in the expression. Litchfield v. Spielberg, 736 F.2d 1352, 1355-56 (9th Cir. 1984).

According to the plaintiff the disputed facts remaining include the custom and usage of the industry, what property owned by the defendant is allegedly infringing upon the plaintiff's copyrighted material, the accuracy of Hallmark's comparison of the story lines, and the alleged failure of Hallmark to address substantial similarities existing between the two copyrighted properties.

The plaintiff has moved to strike the affidavit of in-house counsel Judith Whittaker for lack of compliance with Rule 56(c), Fed.R.Civ.P., in that it is not based upon personal knowledge. The plaintiff challenges the substance of the Whittaker affidavit as well. The only substance challenged by the plaintiff is the alleged accuracy of a synopsis of "Peril in the Pits" program and defendant's contention that the color concept "found in both plaintiff's property and in the accused work, is de minimis." This Court notes that the affiant filed a supplement to her original affidavit which states that the information contained in her affidavit is based upon personal knowledge. In addition, this Court notes that it has not relied upon the synopsis presented by any party in ruling the motion for summary judgment. Furthermore, the Court fails to find that the affiant took the position that the color concept found in both properties was de minimis.

Therefore, since there appears no reason to strike the affidavit of Judith Whittaker, plaintiff's motion to do such will be denied.

COPYRIGHT INFRINGEMENT: COUNTS I AND II

To prove copyright infringement, the plaintiff must show (1) ownership of the copyright; (2) access to the copyrighted work; and (3) substantial similarity between the copyrighted work and the defendant's work." Litchfield v. Spielberg, supra at 1355. For the purpose of defendant's motion for summary judgment, the defendant is not disputing the ownership of plaintiff's copyright nor its access to that copyrighted work. Therefore, the issue before this Court is whether or not substantial similarity exists between the copyrighted materials.

Copyright infringement depends upon the plaintiff showing substantial similarity in both ideas and expression. Similarity of ideas is shown by an extrinsic test which focuses on any alleged similarities in objective details such as a comparison of the plot, the theme, the dialogue, mood, setting, pace and sequence. Similarity of expression depends upon a subjective, intrinsic test, focusing on the responses of the ordinary, reasonable person to the two works. Any listing of similarities, especially in the sequence of events and incidents, are inherently subjective and unreliable. This is especially true when the list emphasizes random similarities scattered throughout the works. To constitute infringement of expression, "the total concept and feel of the works must be substantially similar." Litchfield v. Spielberg, supra at 1357. Protection granted to a copyrighted work extends only to the particular expression of the idea and never to the idea itself. Perma Greetings, Inc. v. Russ Berrie and Co., Inc., 598 F.Supp. 445, 447 (E.D.Mo.1984). "Thus, a similarity of idea presents no infringement question; only when defendant's own expression descends so far into what is concrete in a work as to invade its expression does he violate the plaintiff's right and infringe the copyright." Id. at 447. The difficult task in an infringement action is to separate the nonprotected idea from the protected expression. While it is true that the demarcation line between an idea and its expression is not readily susceptible to generalization, the essence of infringement lies not in taking a general theme but in a particular expression through similarities of treatment, details, scenes, events and characteristics, that is the overall feel of the work. Similarity of themes so obviously calls for similarity of treatment. In addition there are "scenes a faire," sequence of events which necessarily flow from a common theme. Copyrights do not protect thematic concepts or scenes a faire.

A determination of whether substantial similarity exists between two copyrighted works depends upon a side by side comparison of the copyrighted material. Knickerbocker Toy Co., Inc. v. Genie Toys, Inc., 491 F.Supp. 526 (E.D.Mo.1980). The two works "should be considered and tested, not hypercritically or with meticulous scrutiny, but by the observations and impressions of the average reasonable reader and spectator." Twentieth Century-Fox Film Corp. v. Stonesifer, 140 F.2d 579, 582 (9th Cir.1944). Analytical dissection of the two works is improper to determine if the expression of idea has been copyrighted. Dissection of clothing, colors, features and mannerisms following the removal of the characters from their settings is inappropriate. A side by side comparison of the works to determine substantial similarity is not dependent upon a minute, meticulous, analytical dissection but a determination as to whether or not a substantial similarity would be recognized by the ordinary observer. Sid and Marty Krofft Television v. McDonald's Corporation, 562 F.2d 1157 (9th Cir.1977).

Initially, this Court notes that the plaintiff has presented a complaint which barely, if at all, is sufficient under Rule 8 of the Fed.R.Civ.P. which requires a pleading to set forth a short and plain statement of the claim showing that the pleader is entitled to relief. "To be sufficient under Rule 8 a claim of infringement must state, inter alia, which specific original work is the subject of the copyright claim." Gee v. CBS, Inc., 471 F.Supp. 600 (E.D.Pa.1979). The copyrighted work that the plaintiff claims has been infringed and which has been presented and authenticated by the copyright office of the United States, is different from the claim made in plaintiff's reply to Hallmark Cards' motion for summary judgment. In that response, the plaintiff claims that she has copyrighted a merchandising property which involves a unique color concept, namely, that things can be painted multi-colors with a rainbow. The copyrighted material presented to this Court does not present this concept, but only includes drawings of characters contained in the copyrighted play entitled "The Adventures of Rainbow Island." While it is true that on page 51 of the copyrighted material one of the characters states that the rainbow colors on her suit is a result of jumping through the base of the rainbow on Rainbow Island, there is no other reference throughout the entire 59 page play to this "multi-color concept." However, in the copyrighted...