Hearn v. Meyer

• Decision Date: 20 July 1987
• Docket Number: No. 84 CIV. 3422 (PKL).,84 CIV. 3422 (PKL).
• Citation: 664 F. Supp. 832
• Parties: Michael Patrick HEARN, Plaintiff, v. Susan E. MEYER and Harry N. Abrams, Inc., Defendants.
• Court: U.S. District Court — Southern District of New York

664 F. Supp. 832

Michael Patrick HEARN, Plaintiff, v. Susan E. MEYER and Harry N. Abrams, Inc., Defendants.

No. 84 CIV. 3422 (PKL).

United States District Court, S.D. New York.

July 20, 1987.

Leon Friedman, New York City, for plaintiff.

Linden & Deutsch, New York City (David Blasband, of counsel), for defendants.

OPINION & ORDER

LEISURE, District Judge:

The complaint in this action seeks monetary damages, recovery of printing plates and other printing materials, and other relief for alleged copyright infringement in connection with a book authored by defendant Susan Meyer and published in 1983 by co-defendant Harry N. Abrams, Inc., entitled "A Treasury of the Great Children's Illustrators" ("Treasury"). Affidavit of Susan E. Meyer, sworn to on Oct. 22, 1985 ("Meyer Aff."), Exhibit 1 attached thereto. In particular, plaintiff Michael Patrick Hearn, the author of several books and a number of articles concerning children's illustrators, contends that certain reproductions in "Treasury" of original illustrations by W.W. Denslow and a photograph of Mr. Denslow, which were also reproduced in plaintiff's book, entitled "The Annotated Wizard of Oz", Affidavit of Michael Patrick Hearn, sworn to on Nov. 22, 1985 ("Hearn Aff."), Ex. 50, infringe plaintiff's copyright on his reproductions. In addition, plaintiff claims that "Treasury" copies other works of plaintiff, namely, his book, entitled "W.W. Denslow", Meyer Aff.Ex. 13, and his unpublished and incomplete manuscript entitled "The Pictured World", id. at Ex. 7, as well as six other articles written by plaintiff. Id. at Exs. 9-12, 20-21.

Defendants now move for summary judgment seeking the dismissal of plaintiff's claims. Defendants contend that their reproductions of plaintiff's reproductions of the originally published illustrations of W.W. Denslow do not constitute violations of the law of copyright because plaintiff's reproductions of Denslow's illustrations are not original and, therefore, are not copyrightable. Defendants also argue that, as a matter of law, the complaint should be dismissed because the written materials which purportedly have been infringed are not protected by copyright because they are statements of fact and/or ideas, and thus not original expression. Defendants also argue that, as a matter of law, there is no substantial similarity between their expressions, contained in "Treasury," and the passages that plaintiff claims have been infringed. For the purposes of this motion, defendants concede access to plaintiff's work. Plaintiff cross-moves for summary judgment on the his claims regarding the reproductions of the illustrations.

DISCUSSION

The legal principles governing defendants' motion are well-settled. "A court may determine non-infringement as a matter of law on a motion for summary judgment, either because the similarity between two works concerns only `non -copyrightable elements of the plaintiff's work,' or because no reasonable jury, properly instructed, could find that the two works are substantially similar." Warner Bros. Inc. v. American Broadcasting Cos., Inc., 720 F.2d 231, 240 (2d Cir.1983) (citations omitted) (emphasis in original). Accord Walker v. Time Life Films, Inc., 784 F.2d 44, 48 (2d Cir.), cert. denied, ___ U.S. ___, 106 S.Ct. 2278, 90 L.Ed.2d 721 (1986).

A. Copyrightable Elements

When copyright infringement is alleged, "the analysis must first be to determine exactly what the plaintiff's copyright covers, and then to see if there has been an infringement thereof." Axelbank v. Rony, 277 F.2d 314, 317 (9th Cir.1960). The general rule is that "a copyright does not give to the owner thereof an exclusive right to use the basic material, but only the exclusive right to reproduce his individual presentation of the material." Rochelle Asparagus Co. v. Princeville Canning Co., 170 F.Supp. 809, 812 (S.D.Ill.1959). See F.W. Woolworth Co. v. Contemporary Arts, Inc., 193 F.2d 162, 164 (1st Cir.1951) ("Copyright on a work of art does not protect a subject, but only the treatment of a subject."), aff'd, 344 U.S. 228, 73 S.Ct. 222, 97 L.Ed. 276 (1952). Cf. Walker, supra, 784 F.2d at 50 (often-recurring themes not copyrightable "except to the extent they are given unique — and therefore protectible —expression in an original creation"). Accordingly, "the fact that the same subject matter may be present in two paintings does not prove copying or infringement." Franklin Mint Corp. v. National Wildlife Art Exchange, Inc., 575 F.2d 62, 65 (3d Cir.), cert. denied, 439 U.S. 880, 99 S.Ct. 217, 58 L.Ed.2d 193 (1978). "As Justice Holmes stated: `Others are free to copy the original subject matter. They are not free to copy the copy.'" Id. (quoting Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 249, 23 S.Ct. 298, 299, 47 L.Ed. 460 (1903)). Accord Time Inc. v. Bernard Geis Assocs., 293 F.Supp. 130, 141 (S.D.N.Y.1968).

B. Plaintiff Owns no Copyright in Copies of Public Domain Reproductions of Original Illustrations

Plaintiff is the author of a book entitled "The Annotated Wizard of Oz" which contains reproductions, Color Plates XXII, XXVII and XLI, of three illustrations drawn by W.W. Denslow which were reproduced originally in the famous children's book, "The Wonderful World of Oz." Court Exhibits 1, 2 and 3. Plaintiff concedes that the reproductions of the original illustrations appearing in "The Wonderful World of Oz" are in the public domain, having been published originally in 1900. Plaintiff argues, however, that the reproductions of these illustrations appearing in his book "The Annotated Wizard of Oz" are entitled to their own copyrights as reproductions of works of art. Plaintiff alleges that defendants violated his purported copyright by making copies of his reproductions of the 1900 reproductions of the original illustrations. Defendants move for dismissal of this claim arguing that "none of the illustrations ... upon which plaintiff sues are protected by copyright." Defendants' Memorandum of Law ("D.Memo.") at 16. In particular, defendants argue that plaintiff's work fails to satisfy "`the one pervading element prerequisite to copyright protection regardless of the form of the work' ... the requirement of originality — that the work be the original product of the claimant." L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486, 489-90 (2d Cir.), cert. denied, 429 U.S. 857, 97 S.Ct. 156, 50 L.Ed.2d 135 (1976) (quoting 1 M. Nimmer, The Law of Copyright § 10, at 32 (1975)).

The requirement of "originality" stems "from the fact that, constitutionally, copyright protection may be claimed only by `authors.'" L. Batlin, supra, 536 F.2d at 490 (quoting U.S. Const., art. I, § 8; Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58, 4 S.Ct. 279, 281, 28 L.Ed. 349 (1884)). "Thus, `one who has slavishly or mechanically copied from others may not claim to be an author.'" L. Batlin, supra, 536 F.2d at 490 (quoting 1 M. Nimmer, supra, § 6, at 10.2). Moreover, "since the constitutional requirement must be read into the Copyright Act, 17 U.S.C. § 1 et. seq., the requirement of originality is also a statutory one." L. Batlin, supra, 536 F.2d at 490 (citing Chamberlin v. Uris Sales Corp., 150 F.2d 512 (2d Cir.1945)). "It has been the law of this circuit for at least 30 years that in order to obtain a copyright upon a reproduction of a work of art ... that the work `contains some substantial, not merely trivial originality....'" L. Batlin, supra, 536 F.2d at 490 (quoting Chamberlin, supra, 150 F.2d at 513).

It is clear, therefore, that to rule upon any claim for infringement of copyright, the Court must explore the concept of originality. "Originality is, however, distinguished from novelty; there must be independent creation, but it need not be invention in the sense of striking uniqueness, ingeniousness, or novelty, since the Constitution differentiates `authors' and their `writings' from `inventors' and their `discoveries.'" L. Batlin, supra, 536 F.2d at 490 (citations omitted). "Originality means that the work owes its creation to the author and this in turn means that the work must not consist of actual copying." Id. (citations omitted).

The Second Circuit has noted that "the test of originality is concededly one with a low threshold in that `all that is needed ... is that the "author" contributed something more than a "merely trivial" variation, something recognizably "his own."'" Id. (quoting Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99, 102-03 (2d Cir.1951)). However, as the Second Circuit has stated "while a copy of something in the public domain will not, if it be merely a copy, support a copyright, a distinguishable variation will...." Gerlach-Barklow Co. v. Morris & Bendien, Inc., 23 F.2d 159, 161 (2d Cir.1927) (cited in L. Batlin, supra, 536 F.2d at 490). Finally, it is well settled that the foregoing principles are applicable to both reproductions of a work of art and works of art, themselves. "The requirement of substantial as opposed to trivial variation and the prohibition of mechanical copying, both of which are inherent in and subsumed by the concept of originality, apply to both statutory categories." L. Batlin, supra, 536 F.2d at 490.

The Second Circuit has applied this standard in a wide variety of cases. It has held that "mass-produced commercial objects with a minimal element of artistic craftsmanship may satisfy the statutory requirement of such a work." Id. at 491 (citation omitted). Nevertheless, the Second Circuit has held that "the mere reproduction of a work of art in a different medium should not constitute the required originality...." Id. (quoting 1 M. Nimmer, supra, § 20.2 at 94). Moreover, the Court of Appeals has stated that "the requirement of originality cannot be satisfied simply by the demonstration of `physical skill' or `special training'.... A considerably higher degree of skill is required, true artistic skill, to make the reproduction copyrightable." L. Batlin, sup...