Kregos v. Associated Press

• Decision Date: 15 June 1992
• Docket Number: No. 89 Civ. 2007 (GLG).,89 Civ. 2007 (GLG).
• Citation: 795 F. Supp. 1325
• Parties: George L. KREGOS, d/b/a American Sports Wire, Plaintiff, v. The ASSOCIATED PRESS, Sports Features Syndicate, Inc., Computer Sports World, Keith Glantz, and Russell Culver, Defendants.
• Court: U.S. District Court — Southern District of New York

795 F. Supp. 1325

George L. KREGOS, d/b/a American Sports Wire, Plaintiff, v. The ASSOCIATED PRESS, Sports Features Syndicate, Inc., Computer Sports World, Keith Glantz, and Russell Culver, Defendants.

No. 89 Civ. 2007 (GLG).

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

June 10, 1992.

As Amended June 15, 1992.

COPYRIGHT MATERIAL OMITTED

Mark P. Stone, Stamford, Conn., for plaintiff.

Shea & Gould, New York City (Nicholas L. Coch, Walter G. Marple, Jr., Gil Feder, of counsel), for defendant Associated Press.

Norman E. Lehrer, Cherry Hill, N.J., Kuhn & Muller, New York City (Perla M. Kuhn, of counsel), for defendants Sports Features, Computer Sports World, Keith Glantz, and Russell Culver.

OPINION

GOETTEL, District Judge.

In bygone days, baseball reigned as America's favorite pastime. Sadly, this honor seems to now belong to lawsuits. We see it on every front, on the front pages of newspapers, over cable television's airwaves, and in the public discourse. Too often, the fields of dreams have given way to courtrooms, the drama of sport has dissolved into the wrangling of litigation. This case concerns another short chapter of this story, long the preoccupation of devoted fans, baseball statistics.

I. FACTUAL BACKGROUND

Plaintiff George Kregos d/b/a American Sports Wire created a form or chart of statistics on baseball pitchers which has been published in newspapers nationwide since 1983. The form includes certain categories of statistics for the game's probable pitchers including their won-loss records, earned run averages ("ERA"), and number of innings pitched against particular opponents.

In 1983, Kregos sent a copy of his form directly to the Sports Editor of the Associated Press ("AP"). In 1984, the AP began running its own form on baseball pitchers' statistics that was nearly identical to the Kregos form. It appears that both the AP and Kregos derive their statistics from Major League Baseball, Inc.

In 1986, the AP revised its pitching form, changing certain statistical categories and adding certain others for men-on-base average and team record. In particular, the 1986 form compiles a pitcher's won-loss records and ERA for all games against the day's opponent instead of Kregos' statistics for games against the day's opponent at the day's given site. Unlike its AP predecessor and the Kregos forms, the 1986 AP form included categories for "team record" and team record when the day's pitcher started games. The 1986 form is still used by the AP.

Kregos first accused the AP of copying his pitching form in 1984, and shortly thereafter, on the advice of his syndicate, began marking his form with a copyright notice. During discussions over the course of several days, Kregos was told by the AP's attorney that his pitching form was not copyrightable and that Kregos had no legal rights against the AP. Kregos contends that he was convinced by the AP's attorney but responded that it was "wrong." According to Kregos, he meant it was morally wrong for AP to steal his form without being subject to any legal liability.

Also, according to Kregos, defendant Sports Features, which compiled the statistics for the AP pursuant to a contractual agreement, made false representations to him promising, in return for Kregos dropping his pitchers form complaints, to provide him with additional work in football, basketball, and baseball forms. Kregos maintains that he delayed taking any legal action for some time based upon these representations and the subsequent excuses for not delivering the extra work.

Kregos filed applications for copyright registration with the Copyright Office on June 25, 1985 and December 29, 1986. Although Kregos' attorney threatened suit in September 1986, no suit could be brought until Kregos received a certificate of copyright registration for his pitchers form. As plaintiff notes, 17 U.S.C. § 411(a), enacted in 1976, makes a registration of a copyright from the Copyright Office a prerequisite to the institution of a copyright infringement suit. 17 U.S.C. § 411(a) (1988); see also Demetriades v. Kaufmann, 680 F.Supp. 658, 661 (S.D.N.Y. 1988).

The Copyright Office, applying a recent regulation regarding copyrights applications for screen displays, delayed making a final determination on Kregos' applications for two years. During the interim, Kregos' attorney notified counsel for AP and Sports Features in writing of Kregos' intention to sue for copyright infringement upon issuance of his copyright registrations. Kregos commenced suit against the defendants AP and Sports Features in March 1989, four months after the final determination was made granting him his copyrights registrations. During those four months, the parties were engaged in settlement negotiations.

In February 1988, AP's attorney sent Kregos a letter that stated in part that the format and presentation of the AP's baseball pitching statistics are "independently created for the Associated Press." In July 1989, during the course of discovery in this suit, the AP produced a 1984 internal memorandum which stated that the AP's 1984 baseball form "is virtually identical, both in content and in form" to the Kregos form. In creating the AP's form, the memo noted that the AP "consulted various other forms including the Kregos form, but used them only as examples."

In February 1990, this court granted summary judgment in favor of defendant AP on the grounds that the plaintiff's form was not copyrightable. See Kregos v. Associated Press, 731 F.Supp. 113 (S.D.N.Y. 1990). On appeal, the Court of Appeals reversed on the copyright issue and remanded the case for decision on the copyright claim dependent upon resolution of certain other issues. See Kregos v. Associated Press, 937 F.2d 700 (2d Cir.1991); but see Victor Lalli Enterprises v. Big Red Apple, Inc., 936 F.2d 671 (2d Cir.1991) (holding that a compilation of race horse statistics was not entitled to copyright protection). The Circuit Court, however, affirmed the district court's holding that the form was not protected under the Lanham Act.

At a conference in August 1991, this court allowed the plaintiff to file an amended complaint. Kregos did so on August 30, 1991 asserting additional claims under New York statutory and common law for unfair competition and fraud and named several additional defendants including Computer Sports World, Keith Glantz, and Russell Culver.

Defendant AP currently moves for summary judgment on plaintiff's copyright infringement claim and moves to dismiss the new claims of unfair competition, fraud, and violation of New York's consumer protection laws. Defendant AP also moves for Rule 11 sanctions. The other defendants have joined in the AP's present motions. In addition to opposing the AP's motions, plaintiff has cross-moved for Rule 11 sanctions against the AP.

Defendants challenge the copyright infringement claims arguing, on the merits, that the AP's pitching forms do not infringe upon the Kregos form as a matter of law. Specifically, defendants argue that the 1986 AP form is not substantially similar to the Kregos form, and was an independently created factual compilation. Defendants contend that plaintiff's infringement claims concerning its 1984 form are barred by the statute of limitations and no grounds exist to equitably toll the statute which expired for all infringements claims except those accruing after March 1986.

Defendants also contend that plaintiff's fraud claim should be dismissed for failure to show any reliance on the AP attorney's purported fraudulent communications, failure to plead fraud with particularity, and failure to raise the claim in a timely fashion. As to the unfair competition claims, defendants argue for dismissal based upon the law of the case, federal preemption, and failure to state a claim.

Plaintiff offers several responses. He contends that substantial similarity between the 1986 AP form and his own exists and that the statute of limitations should be tolled based upon the Office of Copyright Registration's delays and the defendants's fraudulent legal representations. Plaintiff further argues that his fraud and unfair competition claims, both adequately plead, should not be dismissed because they are neither barred by the law of the case nor preempted.

II. DISCUSSION

A. Copyright Infringement

Defendants seek summary judgment on plaintiff's claims of copyright infringement against both the 1986 and 1984 AP forms. The court can only grant summary judgment if "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). As the moving parties, defendants carry the burden of demonstrating the absence of any material factual disputes. Heyman v. Commerce & Industry Ins. Co., 524 F.2d 1317, 1320 (2d Cir.1975).

The court's function is not to resolve factual issues but simply to determine whether such issues exist. Schering Corp. v. Home Ins. Co., 712 F.2d 4 (2d Cir.1983). In making this determination, the court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party, here Kregos. Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir.1985). Uncertainty regarding the true state of any material fact is enough to defeat a summary judgment motion. United States v. One Tintoretto Painting, 691 F.2d 603, 606 (2d Cir. 1982).

We shall first address the copyright infringement claims against the 1984 AP form. In its earlier opinion, the Court of Appeals noted that it "made no determination concerning the possible effect of the statute of limitations." Kregos, 937 F.2d at 710 n. 8. This issue has now stepped up to the judicial plate. Defendants argue that all infringement claims relating to the 1984 form are barred by the statute of limitations. Plaintiff responds that the statute should be equitably tolled.

The statute of limitations on copyright infringement claims is contained in 17...